ART. 65. ] PROCEEDINGS IN EQUITY.

633

26. In every suit in chancery, by bill or petition, where the de-
fendants, or any of them, shall be infants residing out of this State,
or where application is made by the guardian or prochein ami of any
non-resident infant to sell, lease, mortgage, or exchange the real or
personal property of such infant, on the prayer or petition of the
complainant or petitioner, a commission may be issued, without any
previous process or notice, to any persons, in the discretion of the
judge of the court in which said suit is brought, who reside near
such infants, authorizing them, or either of them, to appoint a guar-
dian to answer for such infant or infants, and take the answer of
such infants by their said guardian, and the said judge may pre-
scribe the mode of authenticating the execution of such commis-
sion, and the answer of every infant so taken in any case, when
returned to the court issuing the commission, shall be as effectual
as if taken under a commission executed within the jurisdiction of
such court; provided, that if in any such suit the party or parties
complainant shall allege and prove, by oath or affirmation, that the

1878, c 322.
How answer of
non-resident
infant defend-
ant taken
31 Md 476

whereabouts of the infant defendant is unknown to him, her, or
them, and that he, she, or they have made diligent inquiry to ascer-
tain the same, the said oath or affirmation, where there is more than
one complainant, to be made by any one, any number or all of such
parties, in the discretion of the court, or when a commission may
have been issued, as herein provided, and the party or parties to

Where where-
abouts of infant
defendant un-
known.

whom such commission may have been issued shall refuse or neglect
to execute or return the same, according to the exigency thereof,
beyond a reasonable length of time, to be judged of by the court
issuing such commission, then the said infant defendants, being non-
residents, may be proceeded against by notice given as provided
for in the preceding section of this article for other non-residents,
but in no case shall a bill or petition be taken pro confesso against
an absent infant defendant.

Or where
parties to whom
commission
issued fail to
execute or re-
turn the same
within reason-
able time.

27. In all cases in chancery, if any person non compos mentis,
and not residing in this State, is a defendant, the court may order
notice to be given to such non-resident, by publication in some
newspaper, to appear and answer such bill or petition, and, upon the
failure of such non-resident to appear and answer the bill or peti-
tion, such decree may be passed as the circumstances of the case
may require; provided, no decree shall pass unless the allegations
in the bill or petition are fully proved, under a commission to be
issued for that purpose; the court, at the time of issuing the com-
mission to take testimony, shall assign a solicitor for such non-resi-
dent defendant or defendants to cross-examine the witnesses, which
solicitor shall be paid by the plaintiff, or out of the estate of the de-
fendant, at the discretion of the court.

Art 16, s. 90
1795, c 88, s 1,
1842, c 216, s 1
Case to be
proved against
non-resident
non compos
mentis

28. Where a decree has passed for the specific execution of any
contract or agreement for the sale or conveyance of real or personal
estate, or any interest therein, against a non-resident defendant,
without his having answered, such non-resident may file a bill of

Id s 91
1773, c 7, s 4,
1787, c 30, s A,
1792, c. 41, s 6,
1796, c. 88, s. 1,
1799, c. 79, s 4.
Right to review