the court on the return of the commission of rebellion.

4. If the de

If the defendant is taken upon any of those pro-fendant is tacesses, he is committed to prison till he enter his ap- ken. pearance according to the forms of the court; and also clears his contempt by the payment of the costs incurred by his contumacious behaviour.

But if he likewise elude the search of the sheriff, a sequestration issues. This, like the commission of rebellion, is awarded on motion grounded on the return of the sheriff, and is directed to certain commissioners therein mentioned, authorizing and commanding them to possess themselves of all his personal estate whatsoever, and the rents and profits of his real estates until satisfaction be made of the plaintiff's demands, and the court shall further order.

tion.

The sequestration is personally served on the tenants 5. Sequestraby two of the commissioners, which is considered as seizing and sequestering under the authority of the writ; an order is then procured for the tenants to attorn to the commissioners, who are amenable to the court for the rents and profits. This order is also served personally. Should the execution of the writ be forcibly obstructed, (c) a writ of assistance may be 6. Writ of sued out, directed to the sheriff of the county, commanding him to assist the said commissioners in such execution.(d)

assistance.

The method of enforcing appearance from a corpo- 7. Distrin ration, is by a distringas, on their failing to appear to a subpana, which distringas is awarded against their lands and tenements, and directed to the sheriff of the county or place where such corporate body is resident, after which, if the corporation continue in contempt,(e)

there issues an alias and pluries distringas,(f) and 8. Alias and

plurice.

1

lastly, the sequestration is awarded against their lands, &c. as in other cases, with this difference only, that when the sequestration is once awarded against a corporation, it cannot, as against private persons, be stayed on entering their appearance. After order is obtained for a sequestration against the defendant, the ant's bill taken complainant's bill is taken pro confesso, and a decree pro confesso. made accordingly, and the sequestrators proceed under the control and authority of the court, actually to sequester the estates of the defendant, agreeably to the tenor of the writ, in order to make satisfaction to the plaintiff for the injury complained of in his bill.(g)

9. Complain

This writ of sequestration, therefore, as Sir William Blackstone remarks, since it never issues till after the plaintiff has obtained his decree pro confesso, seems rather intended to enforce the performance of the decree of the court, than to be in the nature of a process to bring in the defendant,* and it is the only remedy by the constitution of our courts of equity, that a plaintiff has in case the defendant absolutely refuse to appear; for unless he come and contest the suit, the court has no authority to investigate the merits of the subject, "nor can there be any proof against an absent person.' The benefit of a sequestration, therefore, which answers to the primum decretum of the Roman law, or the quantum damnificatus or damages of the common law, is the only satisfaction which the plaintiff can obtain. If however, the defendant either voluntarily or upon a return of either of the preceding processes, appear to the complainant's bill, he is then within a like definite time, limited by the practice of the court, to give in upon oath, the matter he has to offer in his defence,

(g) Barton, 96.

2 Mad. 163. says sequestrations are either upon mesne process or after a decree.

and this appears to be eight days exclusive of the day of appearance, but if it cannot be done in that time, the court usually extend it upon application.(i)

Such was the common law remedy of compelling the defendant's appearance when the service of the subpana was not personal, a remedy which, though not resorted to in modern practice, is nevertheless necessary to be known. After service of the subpoena on the wife of the defendant, let the following affidavit be made:

Proceedings against a defendant by alias and pluries

attachments.

In Chancery.

Between

A. B. Complainant,
and

C. D. Defendant.

E. F. of the city and county of New-York, maketh 11. Affidavit oath, that he this deponent, did on the day of of the subpoena

of the service

on the wife of

last past, serve the wife of the defendant the defendant, with a subpoena, issuing out of, and under the seal of this honorable court, by delivering a copy thereof to the wife of the said defendant, and at the same time, showing her the original, by which said subpoena the defendant was commanded to appear in this honorable court, the day of

above named A. B.

at the suit of the

E. F.

1818, before me,

Sworn this

day of

I. K. Master in Chancery.

After filing an affidavit of the service of the subpœna on the wife of the defendant, let the following rule for attachment be entered:

(i) Barton, 99-100,

In Chancery.

attachment.

12. Rule for On reading and filing the affidavit of E. F. and on motion of G. H. solicitor for the complainant, ordered that an attachment issue in the above cause.

13. Attachment.

Attachment for not appearing.

The people of the state of New-York, free and independent, &c. To the sheriff of the city and county of New-York, Greeting:

day

We command you to attach C. D, so as to have him before us in our court of Chancery, on the of next, wheresoever the said court shall then be, there to answer unto us as well touching a contempt which he, as it is alleged, hath committed against us, as also such other matters as shall be then and there laid to his charge; and further to perform and abide such order as our said court shall make in this behalf, and thereof fail not, and bring this writ with you. Witness, James Kent, Esquire, our Chancellor at the city of New-York, on the

day of

in the year of our Lord one thousand eight hundred and eighteen.

Endorsement.

14. Endorse. By the court for not appearing at the suit of A. B.

ment.

15. Attach

After an attachment is issued out and returned non est, let an attachment with proclamation, be issued as follows:

The People of the state of New-York, by the Grace of ment with pro- God, free and independent. To the sheriff of the city. and county of New-York, Greeting:

clamation.

We command you in our behalf, to cause public pro, clamation to be made in all places within your bailiwick, wheresoever you shall think it most convenient, that C. D. do, upon his allegiance, on the

day of personally appear before us in our court of Chancery, wheresoever it shall then be; and nevertheless, in the mean time, if you can find the said C. D. attach him, so as to have him before us in our said court at the time before mentioned, there to answer to us as well touching a contempt which he hath, as is alleged, committed against us, as touching those things which shall be then and there laid to his charge; and further to perform and abide such order as our said court shall make in this behalf, and hereof fail not, and bring this writ with you. Witness, &c.

Endorsement.

By the court, for not appearing, or answering, &c. 16. Endorse. at the suit of A. B.

ment:

sion of rebel

After an attachment with proclamation is returned 17. Commis non est, let the following commission of rebellion be is- lion. sued; which is usually directed to four commissioners therein named and not to the sheriff, the better thereby to ensure its being executed.(a)

The people of the state of New-York, by the Grace of God, free and independent. To Greeting: Whereas, by public proclamation made in our behalf, by the sheriff of Westchester, in divers parts of the county, by virtue of our writ to him, C. D. hath been commanded, upon his allegiance, personally to appear before us, in our court of Chancery, at a certain day now past. Yet he hath manifestly contemned our said

(a) Barton 83. Gilb. For. Rom. 77.