#### Brachen *v*. Colquhoun, et al.

From Orange.

in the Court below an order of publication as to J. C. an absent Defendant — and afterwards an order setting the cause down for hear, ing and removing it to this Court. It did not appear from any tiling in the transcript that the publication had been made, or a *pro con-fesso*taken.

*Held,*that setting the cause for hearing was irregular. This Court can take cognizance of a cause removed, only after it is set for hearing below. An irregular order setting the cause down for hearing is equivalent to no order — Therefore this Court cannot proceed.

In this case one of the Defendants was a non-resident, and in the Court below', an order of publication was *411made, but it did" not appear from the transcript filed this Court, that the publication had been made : nor was . thei’e any judgment *pro conjesso*entered against the absent Defendant — but the cause had been set for hearing below.

When the cause came on here to be heard, *Badger*of Counsel, desired to know, if he might proceed in the hearing, upon the presumption that, as the cause was ordered to be heard, all the preceding steps necessary to make that order proper, had been taken. The Judges at first appeared to differ in opinion ; but it was agreed if proof of the publication could now be shewn, the judgment *pro conjesso*might be entered *nunc per tunc.*The hearing was then postponed, to give time for the production of such proof *i*but at an after day, *Badger*informed the Court, that no such publication could be found in the Gazette, and prayed, if the Court should be of opinion that the cause could not be heard without such proof, that it might be remitted to the Court below for further proceedings.

HeNDErsoN, Judge. —

Upon principle, the order for setting the cause for hearing, presupposes that the conditional order for taking the Bill *pro conjesso*as to *Jen-nett Colqiihoun,*had been made absolute, for the former order could not regularly have been made without the latter, that is, the cause could not have been properly set for healing without the Defendants having answered, or been in contempt for not answering. And in ordinary cases, where the Defendant is in Court, it-should not be required to be shewn expressly, that all proceedings have been regular. This regularity may be fairly inferred by showing an order or proceedings of the Court, which could not have been properly done without such previous proceedings. But it would be improper to draw such inference in cases where the Defendant is not in Court, for its foundation in some measure fails; wc should not give to the service by publication, all the con*412sequences of personal notice, so far as regards all the Proceedings in the cause, it is sufficient if we give to it the direct effects prescribed by the Legislature. The maTiagement 0f the cause in such cases is entirely in the hands of the Complainant, and we are aware that it is impossible, with the utmost vigilance of the Judge, to preserve to an absent Defendant all his rights; it is sufficient to award to the Plaintiff all his direct advantages, without conferring any on him by inference. I am, for these reasons, for considering the rules for taking the Bill pro *corifesso*as conditional, it never having been made absolute; if the Complainant could show that he had made publication, he might have it made absolute *nunc pro tunc.*This Court having jurisdiction only in cases set for hearing in the Superior Court, and an irregular order to that effect being as no order, the cause must be remanded : it was never properly here.

Tatior, C. J. and Hade, concurred.