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Decrees proconfesso in certain cases.
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104. In case any plaintiff in any civil bill shall be desirous to appeal to the oath of the defendant in such civil bill, it shall be lawful for such plaintiff to cause a notice in writing annexed to the civil bill process to be served upon such defendant at the time of the service of the civil bill, or upon his wife, child, clerk, or servant, or relative of the defendant or of the defendant’s wife, aged sixteen years and upwards, residing in his dwelling house, setting forth that the plaintiff in such civil bill requires the personal attendance of the said defendant upon the hearing of such civil bill, to be examined on oath touching the matters therein contained, and that in default of his appearance for that purpose an application would be made to the assistant barrister for a decree founded upon the affidavit of the plaintiff; and in such case, if the defendant shall not appear upon the said civil bill being called on for hearing, the assistant barrister shall postpone the same, so as to enable the plaintiff to make an affidavit setting forth the facts of the case, and such circumstances, if any, as in his judgment would justify the court in making a decree, and also the amount then justly due to him by the defendant in such civil bill, over and above all just and fair credits and allowances; and such affidavit shall be filed and kept with the records of the county or riding where the same shall have been sworn; and the party so swearing such affidavit shall be liable to be prosecuted for perjury in case any false statement shall be contained in the same; and it shall be lawful for the assistant barrister, upon due proof of the service of the said process and such notice annexed thereto as aforesaid, and upon being satisfied that the said defendant was resident at the time of the service other than personal at such dwelling house where such service was made, and was not at the time of the hearing of the said civil bill disabled by sickness or other sufficient cause from attending thereat, and upon consideration of the matter of such affidavit, and upon examination on oath of the plaintiff, in case he shall think fit to examine him, and if he shall be satisfied of the justice of the claim of the plaintiff, to make a decree for such sum as to him shall seem just, or to decline making any decree: Provided also, that in case any decree shall be made, it shall appear on every such decree so made as last aforesaid that the same was made upon the affidavit of the plaintiff filed in the said court, specifying the date thereof.
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