126 BURCH v. SCOTT.

are not incompatible, particularly as no objection to it has been
made on that ground; or whether the decree has been obtained by
fraud or not; or is erroneous upon its face. The decree of the
4th of August last, now complained of, was obtained in that suit
by the default of the defendant, in not filing his answer within the
time prescribed by the rules of the court. This apparent negli-
gence the present plaintiffs, by their bill, have endeavoured to
account for, to justify, or to excuse. And whether they have done
so or not, is the matter now to be ascertained: if they have, this
decree must be opened.

The decree was signed as of July term; and, as has been
observed before, all decrees and orders of the court being held
entirely subject to its control during the term, if an answer had
come in at any time previous to the close of that term, the decree
by default would have been set aside, and the defence let in.(o)
No decree by default, under the rule, will be signed until after the
first four days of the term; but after that an answer may be filed,
and the decree rescinded, at any time before the first day of the next
succeeding term.(p) On turning to the proceedings, in the origi-

(0) When this opinion was delivered there were, as it appears there had always
been, four regular terms of this court, in each year, for the return of procevss, &c.
But the continuance of the sittings, which in this and all other similar cases, is
spoken of as the term, was irregular and indefinite. When it was presumed, that all
the cases, ready for hearing, had been called up, the sittings, or as they have been
most usually called, the terms, were closed, by a memorandum to that effect entered
upon the docket, by order of the Chancellor. This was attended with inconveni-
ence; for although the Court of Chancery has terms, it is not, in the sense of the
common law, a term court; but is always open, (1 Rep. Co,. Chan. Earl of Oxford's
case, 6. Crowley's case, 2 Swan, 11.) I therefore deemed it proper, that the rules
might be better understood and enforced, and for the despatch of business, to jfix by
the rule of the 28th of April, 1S27, the dose as well as the commencement of the
sittings of each term.

(p) CLAPHAM v. CLAPHAM.—This was a bill filed on the 9th January, 1810, to
foreclose a mortgage and have the property sold. It stated, that the defendant was
not a resident within the State, and prayed publication, which was ordered and made.

4-th, October, 1810.—KILTY, Chancellor.—Upon the argument that took place at the
present term, respecting the above suit, the Chancellor is of opinion, that it comes
within the provision made by the 9th section of the act of 1799, ch. 79, and that he
is authorized to take the bill pro confesso, although he has also by the terms of the
act a power to issue a commission. Under the act of 1795, ch. 88, after a publica-
tion against an absent defendant, and after the expiration of the time limited, he
might, at any time before a decree, appear in person or by a solicitor, on which the
same proceedings were to take place as if he had regularly appeared. This privi-
lege occasioned an unreasonable delay; because it was easy for the absent defendant
to appear by his solicitor, and he could not be brought in by an attachment for want