DECREE BY DEFAULT, &c. No. I. DECREE BY DEFAULT. This cause coming before this Court in the presence of counsel learned for the plaintiff, none appearing for the defendant, although he hath been duly served with a subpoena to hear judgment in this cause, as by affidavit now read appears; the substance of the plaintiff's bill appeared to be that &c. Whereupon and upon hearing the defendant's answer read (1) and what was alleged &c. This Court doth think fit and so order and decree that &c. (2). And this decree is to be binding unto the said defendant, unless he on being served with a subpoena (3), to be served on him for that purpose, shall shew unto this Court good cause to the contrary (4). But the said defendant before he is to be admitted to shew such cause is to pay unto the plaintiff his costs (5) of this day's default in appearance, to be taxed by the said Master. Rolle v. Wilcox, (Clarke, B. & others), 4th November, 1746. Reg. Lib. B. 1746. fol. 101. See Gilb. For. Rom. 156. For like decree. See Equity Draftsman, 664. For like decree against infant. See Equity Draftsman, Ib. NOTE. (1) The answer should be entered as read. See Lord Clarendon's orders. Halsey v. Smyth, Mos. 186. Gilb. For. Beames 198. Rom. 151. 154. But not the evidence. Stubbs v. 10 Ves. 30. And see Webb v. Litcot, 3 Atk. 25. S. C. 1 Dick. 88. Where however the heir at law made default at the hearing, the Court would not declare the will well proved without hearing the evidence read. Webb v. Litcot, supra. (2) Decree by Default. It is usual to direct that the plaintiff shall take such decree as he can abide by. Harr. 310. It is not a judgment pronounced by the Court, but the act of the party. Carew v. Johnston, 2 Sch. & Lefr. 300. Knight v. Young, 2 V. & B. 186. Otherwise in the case of a decree, pro confesso. Knight v. Young, supra. And see Decree pro confesso, No. IV. post. Where one of the defendants to a bill of interpleader makes default, an absolute decree will be made against him in the first instance. Hodges v. Smith, 1 Cox, 357. (3) Subpœna. This subpoena is a judicial writ and must be made returnable in And see order for making Decree absolute, term. Harr. 310. No. II. post. For writ of subpoena to shew cause. See Appendix to Reg. Brev. 47. There is no fixed time for the service of it before the day to shew cause, which is attended with inconvenience. Harr. 310. For service of subpoena. See Lander v. Whitmore, 2 Dick. 596. For order for service on clerk in Court. See Hand's Pract. 125. (4) Shewing Cause. The defendant may either shew cause against making the decree absolute, or petition for a rehearing. See setting aside Decree by Default, Note (5), post. Want of parties may be shewn as cause against making a decree absolute. Jackson v. Lee, 1 Dick. 92. A trustee having made default at the hearing and set down the cause again, was allowed his costs. Norris v. Norris, 1 Cox, 183. (5) Costs. Before being admitted to shew cause, the defendant must produce a certificate of the payment of the costs, or an affidavit of a tender and refusal. See Lord Clarendon's orders. Beames, 198. And see Harr. 311. By the order of the 30th April, 1700, Beames, 314. the defendant is not to be admitted to shew cause, or to rehear the cause until he has paid the full costs of the hearing, and if the decree has been made absolute, the costs to the time of rehearing. Setting aside Decree by default. After the service of the subpoena the defendant may upon petition have the cause set down again for hearing upon payment of costs of his default as of course. Harr. 311. In Margravine of Anspach v. Noel, 19 Ves. 573. S. C. 1 Mad. 313. it was held that the cause should be appointed for a particuday, not set down at the end of the causes already set down, according to the former practice. But in Undershell v. Norton, Rolls, 25th February, 1828, MS. it was held that the old practice was correct; and that upon its being so set down, either party might apply to advance it. After a decree by default is made absolute a rehearing will be permitted on terms. Cunningham v. Cunningham, 1 Dick. 145. S.C. Ambl. 89. Foyl v. Foyl, cited Ambl. 91. Fry v. Prosser, 1 Dick. 298. Vowles v. Young, 9 Ves. 172. Attorney-General v. Brooke, 3 Mer. 698. S. C. 18 Ves. 319. 496. And see Knight v. Young, supra. So notwitstanding second default. Hankwitz v. O'Carrell, 1 Dick. 109. So notwithstanding report under decree by default confirmed absolutely, and time for redeeming elapsed. Kinsay v. Kinsay, cited 1 Dick. 145. The plaintiff cannot apply for a rehearing until the decree has been made absolute. Baxter v. Wilson, 2 Atk. 152. The plaintiff having made default at the hearing, and the bill having been dismissed, was permitted to rehear the cause on terms. Tarrant v. Wake, cited. Ambl. 90. S. C. (Terran v. Waite,) 2 Dick. 782. By Lord Clarendon's orders, Beames, 315. the order for rehearing should be procured before the end of the next term after the decree is made absolute. But this order is not acted upon. A decree by default made absolute cannot be varied on motion. Williams v. Jones, 13 Price, 265. And see Knight v. Young, 2 V. & B. 186. Attorney-General v. Brooke, 3 Mer. 698. Whether a decree by default can be varied at the time for making it absolute to the prejudice of a party not appearing. Q. Williams v. Jones, supra. An appeal from a decree by default made absolute was dismissed, as the evidence not having been read on the original hearing, could not be read on the appeal. Button v. Price, Prec. in Ch. 212. No. II. ORDER MAKING DECREE ABSOLUTE. Whereas by an order of the 14th day of May last, made on the hearing of this cause, it was ordered and decreed that &c. and the said decree was to be binding upon the defendant E. M. unless &c. [See No. I. ante.] Now upon motion this day made unto this Court by Mr. C. being of the plaintiff's counsel, it was alleged that the defendant E. M. hath been duly served with a subpoena to shew cause against the said decree, returnable the first day of this term (1) as by affidavit appears; and no cause being shewn to the contrary thereof, as by the Registrar's certificate appears; it was therefore prayed that the said decree may be made absolute, which is ordered accordingly. Wilcox v. Monk, L. C. 25th October, 1746. Reg. Lib. B. 1746. fol. 4. Fo like orders. See Hand's Pract. 126. Equity Draftsman, 612. NOTE. (1) See No. I. Note (3), ante. No. III. FURTHER DIRECTIONS. This cause having on the 6th of December, 1743, received a hearing before the Right Honourable &c. and the scope of the bill being &c. whereupon it was ordered and decreed that &c. and the consideration of costs as between the plaintiff and the defendant Crump was reserved until after &c. and the said decree was to be binding upon the said defendant Crump unless &c. [See No. I. ante.] That the said order of the 6th day of December, by order of the 6th of March, was made absolute, pursuant whereto the said Master by his report &c. which stands absolutely confirmed, certified that &c. And this cause coming this present day to be heard as to the matter of costs reserved by the said decree in the presence of counsel learned for the plaintiff, none appearing for the defendant Crump, although he was served with the order for BB setting the cause down to be heard as to the matter of costs, as by affidavit now read appears. Whereupon and upon hearing of what was alleged by the plaintiff's counsel, this Court doth order that the defendant Crump do pay unto the plaintiff his costs of this suit to be taxed by the said Master. Cotton v. Crump, M. R. 17th March, 1748. Reg. Lib. A. 1747. fol. 304. NOTE. Where the defendant makes default at the original hearing, and again makes default at the hearing for further directions, the decree on further directions will be made absolute in the first instance. Cotton v. Crump, supra. So where the cause is adjourned on the original hearing, and the defendant makes default at the further hearing, an absolute decree will be made. Halsey v. Smith, Mos. 186. Venemore v. Venemore, 1 Dick. 93. So in the Exchequer. See Geale v. Winter, 1 Eagle and Younge, 743. S. C. Bunb. 40. No. IV. DECREE FOR TAKING BILL PRO CONFESSO This cause coming this present day to be heard and debated before the Right Honourable &c. in the presence of counsel learned for the plaintiff, and all the defendants except the defendant Walter Hendley. (1) The substance of the plaintiff's bill appeared that &c. Whereupon and upon debate of the matter, and hearing of what could be alleged by the counsel for the plaintiff, and all the defendants except the defendant Walter Hendley; and forasmuch as the said plaintiff sued out a subpoena to compel the defendant Walter Hendley to appear to, and answer the plaintiff's bill, and the said defendant not appearing thereto, and absconding to avoid being served with such subpoena, as by affidavit appeared, the said plaintiff obtained an order bearing date the 27th day of May, 1746, that the said defendant should appear to the plaintiff's bill on or before the 27th day of June then next; and the said order |