18. 19. Habeas corpus. command. Therefore we command you jointly and If the commission of rebellion is returned cepimus corpus, that the defendant is taken, let him be brought into court by a habeas corpus, (the form of which see ante p. 85, 86.) for the purpose of entering his appearance. Upon this subject, the statute provides, that if the defendant be brought into court by writ of habeas corpus, or other process issuing therefrom, and shall refuse or neglect to enter his appearance according to the rules of the said court, or to appoint a clerk to act on his behalf, then and in such case the said court may appoint a clerk to enter an appearance for such defendant, and such further proceedings may be had in the said cause as if the party had actually appeared.(a) If the return to a commission of rebellion is non est, (a) 1 N. R. L. 490. sec. 10. the court in England, will, on motion grounded on the return of the commission of rebellion, dispatch the sergeant at arms in quest of the defendant: and if the sergeant is also unsuccessful, and the defendant eludes his vigilance, a sequestration issues. This, like the commission of rebellion, is awarded on motion grounded on the return of the sergeant at arms, and is directed to commissioners therein named, which may be as follows: The people, of the state of New-York, by the Grace of God, free and independent: To L. M. N. O. P. Q. R. S. Whereas, A. B. complainant, exhibited his bill of complaint into our court of Chancery, against C. D. defendant: And whereas, the, said C. D. being duly served with a process of subpoena, issuing out of our said court commanding him, (under the penalty therein mentioned,) to appear and answer the said bill, hath hitherto refused so to do, and thereupon all process of contempt hath issued against him: And whereas, C. D. hath of late absconded, and so concealed himself, that the sergeant is not able to find him, as by the certificate of said sergeant appears. Know ye therefore, that we, in confidence of your prudence and fidelity, have given, and by these presents give to you, or any three or two of you, full power and authority to enter upon all the messuages, lands, tenements, and real estate whatsoever of the said C. D. and to take, collect, recover, and sequester into your hands, not only all the rents and profits of the said messuages, lands, tenements, and real estate, but also all his goods, chattels, and personal estate whatsoever and thereupon we command you, any three or two of you, that you do at certain, proper, and 20. Seques tration. 21. Process against a cor poration. convenient days and hours, go to and enter upon all the messuages, lands, tenements, and real estate, of the said C. D. and that you collect, take, and get into your hands, not only the rents and profits of all his real estates, but also all his goods, chattels and personal estates, and detain and keep the same under sequestration in your hands, until the said C. D. shall fully answer the complainant's bill, clear his contempts, and our said court make order to the contrary. Witness, James Kent, &c. &c. The first process against a corporation, is similar to that against common persons,* but as corporations exist only in the intendment of law, and cannot be served with personal process, the method of enforcing their appearance, is by distringas, instead of attachment. The form of a distringas in such case is as follows: The people of the state of New-York; by the Grace of God, free and independent. To the sheriff of The practice laid down in Cooper's Pleadings, and other elementary writers, in relation to the manner of proceeding against corporations aggregate, is evidently erroneous, in stating that the bill filed against them should pray for a distringas in the first instance, instead of a subpœna, nor is it easy to conjecture how this error has crept in, unless from the practice which prevails in England of issuing subpœnas before the bill is filed, though this is in violation of the statute of Anne. In chancery, the process of distringas against a corporation aggregate, is not, and ought not to be, issued in the first instance against them, nor until they incur the contempt of the court, by a disobedience to the subpœna in not appearing agreeably to its mandate. It is in the nature of an attachment against individuals, after the due service and return of a subpoena.-This process is issued against a corporation for the purpose of distraining their goods and chattels, rents and profits, until they obey the mandate of the court, issued in the first instance agreeably to the prayer of the bill. Maddock, in his 2d volume, p. 168. says, when a corporation are defend. ants, and they refuse to appear, no attachment is issued, but a distringas, (meaning thereby to appear to a subpœna.) Again, it is stated in Blackstone's Commentaries, vol. 3. p. 445. that the process of distringas cannot be issued out till after the ser vice of the subpæna. Turner, vol. 1. p. 14. of the Introduction, edition of 1804. says, that when a corporation are made defendants, and refuse to appear, an ap. plication ought to be made to the clerk for a distring as to enjoin an appearance, &c. Greeting: We command you, that you make a distress upon the lands and tenements, goods and chattels, of the President, Directors and Company, &c.-(giving the style of the corporation,) within your bailiwick, so that neither the said President, Directors and Company, of, &c.-or any other person or persons for them, may lay their hands thereon, until our court. of Chancery shall make other order to the contiary; and in the mean time, you are to answer unto us for the said goods and chattles, rents and profits, of the said lands, so that the said President, Directors and Company of, &c.-may be compelled to appear before us, in our said court of Chancery, wheresoever it shall then be, there to answer to us, as well touching the contempt, which as it is alleged they have committed against us, as also such other matters and things as shall be then and there laid to their 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.] James Kent, &c. &c. Endorsemeut. 22 Endorse ment. 23 Order to By the court, at the suit of A. B. for want of appearance: Order to take the bill pro confesso, vide ante. 76. take bill pro confesso. 14 1. How dc. fendant's ap. entered. DEFENCE TO A SUIT. Special Contents. I. Defendant's appearance entered. II. Demurrer without oath and signed by solicitor. III. If defendant demurs for want of parties. IV. After filing the demurrer when it ought to be set down for argument. V. How to set it down for argument. VI. Notice of bringing the cause to a hearing on demurrer. is to be given. VIII. Complainant neglecting to bring the cause to a hearing. IX. Demurrer to be signed by counsel. X. If overruled. XI. If general to the whole bill. XII. Admits all the facts. XIII. Will lie for want of jurisdiction. XIV. And in like manner to the disability of the person. XV. And on an account of a deficiency of the frame of the bill. XVI. It must be founded on a point of law. XVII. A bill praying for the appointment of a guardian not de murrable. XVIII. Will lie when parties have adequate relief in law. Of Demurring, Pleading, and Answering. If the defendant appears, he does it, as has been said, pearance is by entering the same with the clerk in court, and after this, gets from the clerk an office copy of the bill, to which he must demur, plead, or answer, in six weeks, exclusive from the day his appearance is required to be entered by the subpoena; if he does not, he will be in contempt, and other process of contempt will issue against him; or, the complainant may proceed to take the bill pro confesso against him. |