vided there were a strong necessity shown, and sufficient parties were before the Court to represent each conflicting interest, and to discuss the questions freely and without restraint. (ƒ)

In cases where persons interested are out of the jurisdiction of the Court, it is sufficient to state that fact in the bill, and to pray that process may issue on their return; and if the statement be substantiated by proof at the hearing, their appearance in the suit will be dispensed with. (g)1 The power of the Court to proceed to a decree in their absence will depend on the nature of their interest, and the mode in which it will be affected by the decree. If they are only passive objects of the judgment of the Court, or their rights are incidental to those of parties before the Court, a complete determination may be obtained. But if they are to be [*323] active in performing the decree, or if they have rights wholly distinct from those of the other parties, the Court, in their absence, can not proceed to a determination against them. (h)2 The powers conferred by

(f) Supra, Partnership; Wallworth v. Holt, 4 M. & C. 619; Richardson v. Larpent, 2 N. C. C. 507; Richardson v. Hastings, 7 Beav. 301, 323; Clough v. Radcliffe, 1 De G. & Sm. 164; Apperly v. Paige, 1 Ph. 779; Wilson v. Stanhope, 2 Coll. 629.

(g) Burton v. Egginton, 1 Hare 488; Munoz v. De Mastet, 1 Beav. 109. (h) Mitf. on Pleading 32; Fell v. Brown, 2 B. C. C. 276; Brown v. Blount, 2 Russ. & M. 83; Willats v. Busby, 5 Beav. 193; 1 Dan. Ch. P. 199, 200.

1 See Spivey v. Jenkins, 1 Ired. Eq. 126; Milligan v. Milledge, 3 Cranch 220; Lainhart v. Reilly, 3 Dessaus. 590; Rule No. xlvii., U. S. Courts in Eq.; No. xx., Penna.

2 See Joy v. Wirtz, 1 Wash. C. C. 517; Mallow v. Hinde, 12 Wheat. 193; Corron v. Mellaudon, 19 How. 113. In a suit to recover a debt against the estate of a deceased partner, the other partners are proper and necessary parties; and, although when they are out of the jurisdiction of the Court they may be dispensed with, yet this exception does not apply

statute of serving such parties with process abroad, and thus bringing them before the Court, will be presently considered.

to cases involving important rights of the absent partners, and especially not to cases where the facts are mainly in their knowledge, or where the circumstances occurred in the place where they are: Vose v. Philbrook, 3 Story 336. See Burwell v. Cawood, 2 How. (U. S.) 575; Wilson v. City Bank, 3 Sumner 422.

The Supreme Court of the United States will not make a final decree upon the merits of a case, unless all persons essentially interested are parties, although some of those persons are not within the jurisdiction of the Court: Russell v. Clark, 7 Cranch 69; but see now the Rule in Equity, No. xlvii.

*CHAPTER III:

[*324]

OF PROCESS AND APPEARANCE.

AFTER the bill has been filed it is next requisite that the subpoena1 should be served; that the defendant should enter his appearance; and that after appearance he should put in his defence. The defence may, as we shall hereafter see, be of four kinds, Disclaimer, Demurrer, Plea, and Answer. But the most usual form, and the only one to which compulsory process applies, is that of answer.

The ordinary service of subpoena is by delivering a copy to the defendant personally, or leaving one at his place of actual residence. And in special cases, where an absconding or absent defendant has a recognised agent in the matter litigated, substituted service on such agent has been allowed. (a)2 But as a general principle the Court has no inherent authority to dispense with service on the defendant himself, or to authorize any service beyond the limits of its own jurisdiction. (b)3

3

(a) Hobhouse v. Courtney, 12 Sim. 140; Murray v. Vipart, 1 Ph. 521. (b) Whitmore v. Ryan, 4 Hare 612.

1 The writ of subpoena is now abolished in England, and instead thereof a printed bill is served on the defendants. In some of the United States the subpoena is still in use; in others, as in Pennsylvania, service by copy of the bill is substituted. See Daniel's Chan. Prac. 428.

2 See on this subject, Eckert v. Baeert, 4 Wash. C. C. 370; Ward v. Seabry, Id. 426, 472.

The Court of Chancery has power, under the recent General Orders, to direct service of its process abroad: Drummond v. Drummond, L. R. 2 Eq.

Assuming the subpoena to be duly served, the defendant must next appear. If he be contumacious and refuse, his disobedience may be punished as a contempt.

The processes of contempt were originally five, viz. :1. A writ of attachment directed to the sheriff of the defendant's county, commanding that the defendant's person should be attached. To this writ the sheriff might return, 1. That he had the defendant in custody; 2. That he had taken him, but had accepted bail; 3. That he could not find him within his bailiwick. On the [*325] first of these returns being made, the defendant was brought up by habeas corpus, on the second by the messenger of the Court, or the serjeant-at-arms, and in either case was committed to the Fleet, now altered to the Queen's Prison. On the third return, that of non est inventus, the next process of contempt issued.

2. A writ of attachment with proclamations; on which the same returns might be made, and the same results would follow.

3. A writ of rebellion directed to commissioners appointed by the Court, and extending into all the counties of England. On this process no bail could be taken, but the commissioners either brought the defendant up in custody, on which he was committed to the Fleet; or made a return of non est inventus, upon which followed,

An order that the serjeant-at-arms, as the immediate officer of the Court, should effect the arrest. If an arrest were made under this process, it was followed, like other arrests, by committal to the Fleet. But if the return

335; affirmed in L. R. 2 Ch. Ap. 32. In some of the states, publication is authorized by statute, in the case of non-resident defendants. See Haring v. Kauffman, 2 Beas. 297. Such provisions have been held to include lunatics in their effect: Sturges v. Longworth, 1 Ohio St. N. S. 550.

were non est inventus, there was no further process against the person.

5. A writ of sequestration, issuable only on the return non est inventus of the serjeant-at-arms, or on a defendant in custody being committed to the Fleet. This writ was issued, not against the person, but against the property of the defendant, and authorized the sequestrators to take his goods and personal estate, and to enter on his real estate, and to sequester the rents and profits. If the sequestration proved ineffectual, there was no further process. And in the reign of Elizabeth, even the right to sequester was disputed, and it was said by the judges that the Court had no authority beyond personal commitment, and that if a sequestrator were killed in the execution of process, it was not murder. (c)

*In the case of a person having privilege of [*326] peerage or Parliament, and exempt, therefore, from committal for civil contempt, (d) a sequestration nisi was substituted for an attachment, which if no cause were shown was afterwards made absolute. In the case of a corporation, which cannot be attached, the first process was by distringas, and the second by sequestration.

Assuming an appearance to be entered, an answer was next required. And if this were refused, the process of contempt was again enforced; but if resisted to a sequestration, the plaintiff was not restricted to that remedy, but on issuing the writ, might apply to the Court to take his bill pro confesso, and to decree against the defendant on the assumption of its truth.

If a decree were ultimately made against the defendant, its performance was enforced by a like process of con

(c) 1 Smith C. P. 571.

(d) Wellesley's Case, 2 R. & M. 639.