524 MAYER v. TYSON.—1 BLAND.

controlling or abrogating an Act of Assembly, they cannot be
allowed the weight of a feather.

The original Act, 1797, ch. 114, s. 5, speaks of an infant residing
out of the State; and the mode which it prescribes, for obtaining
the answer of such an infant, is clearly one which may now be,
and was formerly very commonly pursued for obtaining the answer
of an infant within the State, and therefore, whether the infant is
considered as being at the time a non-resident, in every sense of
that term, or not, is unimportant. It is sufficient, that he is then,
when the answer is taken, in the State or country to which the
commission is directed: for, if he has a guardian appointed by
whom his answer is taken in the most formal manner, so as to war-
rant its being received whether he is considered as a resident with-
in or out of the State, then the answer, being in a form to suit
either alternative, it becomes unnecessary to decide whether he
was, at the time of its being taken, a mere sojourner abroad, or
actually " residing out of the State," or not.

The case of publication against a non-resident, presents an en-
tirely different question; because the publication is to stand in
the place of actual notice only in case the party be in truth a non-
resident; and therefore, if he does not, in fact, at the time, reside
out of the State, such a substitute for the actual service of process
cannot be resorted to, for the purpose of enabling the Court to act
upon the case; and therefore, the decree will be void: since the
publication against the non-resident can, in no way, be fashioned,
like a 6ommission to take the answer of an infant defendant, to
suit both alternatives of a residence, or a non-residence; and con-
sequently, if the publication be not valid upon the ground of the
actual non-residence of the party, it is a nullity to all intent and
purposes whatever.

Whereupon it is ordered, that a commission issue as prayed by
the said petition of the plaintiffs filed on the 15th instant.

A commission was issued and an answer returned accordingly;
after which, on the 8th May, 1829, it was decreed that the real
estate be sold, &c.

559 * MAYER v. TYSON.

EXCEPTIONS TO ANSWER.—SECURITY FOR COSTS.

An answer held, on exceptions, to be insufficient, is as no answer.

If a defendant does not. after exceptions, put in a sufficient answer, as
ordered, the bill may be taken pro confesso and a final decree passed; or
the case may be prosecuted, as against the other defendants, to a final
decree.