Page:Federal Reporter, 1st Series, Volume 9.djvu/818

 FORSYTH ». PIERSON. 803 �bill on a certain day therein to be desiguated; and the said order shall be served on such absent defendant wherever found, or vrhere Buch Personal service is not practicable shall be published in such manner as the court shall direct. If the absent defendant fails to appear and plead within the time limited, the court is authorized to entertain jurisdiction and proceed to the hearing of the suit. �The act is silent on the subject of the evidence that will authorize the making of an order for substituted service. The marshal's re- turn to a subpœna that one or more of the defendants cannot be found within the district would, no doubt, authorize the court to en- ter such an order. But this is not the only evidence that will author- ize the court to enter an order for substituted service. An affidavit such as was produced in this case is sufficient evidence that the defendants named in it are not inhabitants of the district. When it is made to appear at the commencement of the suit, or at any subse- quent time, that a defendant is not an inhabitant of the district, and cannot be found within it, and vyill not, or does not, voluntarily appear to the suit, an order may be entered specifying a day for such defendant to appear and plead, answer or demur. It is not neces- eary to wait and see if the absent defendant will not voluntarily enter bis appearance, or that he may be found and personally served with process in the district. It is urged that equity rule 17 fixes the appearance-day for defendants in all equity cases. "The appearance- day of the defendants," says this rule, "shall be the rule-day after the subpœna is made retumable, provided he bas been served with the process 20 days before that day. Otherwise bis appearance-day shall be the next rule-day succeeding the rule-day when the process isreturnable." �The act says the absent defendant shall be ordered to appear on a day to be designated in the order — not on a rule-day. And, fur- thermore, the order for the appearance of the absent defendant is not a subpœna or process within the meaning of rule 17 or rule 15, which provides that the service of all process, mesne and final, shall be by the marshal of the district, or by his deputy, or by some other person specially appointed by the court for that purpose. The lan- guage of the act is : " And the said order shall be served on such absent defendant, if practicable, wherever found ; or, when such serv- ice is not practicable, shall be published in such manner as the court shall direct." The order is nowhere referred to as process, and no particular service or proof of service is required. The res- idence of each of the absent defendants was given in Mr. Doolittle's ��� �