232 LINGAN v. HENDBRSON.—1 BLAND.

Statute of Erauds, as the general rules of evidence, by which evi-
dence to contradict or vary a written instrument is excluded.'1

The commission, with this testimony and these objections, were
returned and filed on the 12th of July, 1824. Some time after
which the plaintiffs by their petition stated, that they had by
mistake alleged in their bill, that all the defendants were non-
residents when in truth the defendant Richard Henderson always
has been, and is now a resident of Montgomery County in this
State. Whereupon they asked leave so to amend their bill as to
pray process of subpoena against him.

BLAND, C., 16th January, 182G.—An order of publication, such
as that prayed for by the bill of these plaintiffs, is allowed by the
Acts of Assembly only as a substitute for a subpoena in certain
specified cases, which are thus made exceptions to the general
rule, which requires, that the regular process of the Court should
be prayed for and issued against all who are to be called in as
parties and defendants to the suit. Hence it must appear upon
the face of the bill, that the case is of such a nature as to author-
ize an order of publication warning a resident defendant to appear,
or it must be expressly stated in the bill, that the parties therein
named do not reside within the State, so as thereby to lay a proper
foundation for praying for an order of publication warning them to
* appear and answer. Wheie a husband and wife who
246 neither of them reside within the State, are proposed to
be made defendants, it is necessary that she should be warned by
the order as well as her husband, otherwise her interests cannot
be bound. Martin v. Russell, MS. 22d December, 1797. In all
cases the granting of such an order of publication is almost as
much a matter of course as the issuing of a subpoena; because it
is conceived that the plaintiff proceeds upon it at his peril, for if
the case be such, or the defendant be not in fact a non-resident, so
as to authorize such an order, any decree which the plaintiff may
thus obtain must be considered as utterly void in point of fact.
Carew v. Johnson, 2 Scho. & Lefr. 280. These plaintiffs having
discovered their mistake, do well therefore to have their bill
amended in this respect. Let the amendment be made as prayed.

After which, on the 17th of November, 182C, the defendant
Richard Henderson alone filed the following plea:

"This defendant by protestation to all the discoveries aud relief,
in and by the said bill sought from or prayed against this defend-
ant and others, doth plead in bar, and for plea saith, that by an
Act of Assembly made and passed at April Session in the year
one thousand seven hundred and fifteen, entitled, 'An Act for Lim-
itation of certain actions, for avoiding suits at law,' it was amongst
other things enacted, that all actions of trespass aware clausum