issue and service of a subpoena.13 The defense by its attorneys at its expense of a suit against another in pursuance of a contract with him is not an appearance by a foreign corporation; nor will it support an application by the plaintiff to make it a party." The Texas statute which provides that a special appearance for the sole purpose of questioning the jurisdiction. is equivalent to a general appearance is constitutional; 15 but it does not bind the Federal courts at law or in equity even in a case originally instituted in a State court and brought into a court of the United States by removal.16 A special appearance, it would seem, is only properly made by special leave of the court obtained by an ex parte motion," and it is the safer practice to accompany it with an undertaking by the defendant to abide by the further orders of the court.18 By styling a paper a special appearance the draftsman does not prevent the appearance from becoming general.19 An appearance gratis can only be made by a defendant named in the introduction or prayer for process in the bill, unless by consent of all the parties to the suit.20 § 101. Effect of an appearance.- A general appearance waives all objections to the form or manner of service of the subpoena,1 including, usually, the objection that the defendant ciety v. Spiro, 164 U. S. 281; infra, Cas. 448; Romaine v. Union Ins. Co., § 391. 28 Fed. R. 625. But see Dorr v. Gibboney, 3 Hughes, 382; National F. Co. v. Moline M. L Works, 18 Fed. R. 863. 18 Romaine v. Union Ins. Co., 28 Fed. R. 625. 13 Seattle v. U. Tr. Co., 79 Fed. R. 179. The indorsement and signature by a defendant upon a subpoena of the words, “I hereby accept service of the within subpoena, to have the same effect as if duly served on me by a proper officer, and do hereby acknowledge the receipt of a copy thereof," is not equivalent to an appearance. Butterworth v. Hill, 114 U. S. 128, 132, 133. 19 Crawford v. Foster, 84 Fed. R. 939; Caskey v. Chenoweth (C. C. A.), 62 Fed. R. 712. 20 Attorney-General v. Pearson, 7 Simons, 290, 302; Kentucky S. Min. Co. v. Day, 2 Saw. 468, 473. See Anderson v. Watt, 138 U. S. 694; Beck & 14 Bidwell v. Toledo Canal St. Ry. Plith Co. v. Wacker & B. B. & M. Co. Co., 72 Fed. R. 10. (C. C. A.), 76 Fed. R. 10; Roberts v. Brooks, 71 Fed. R. 914. § 101. Segee v. Thomas, 3 Blatchf. 11; Goodyear v. Chaffee, 3 Blatch. 268; Hale v. Continental L. Ins. Co., 12 Fed. R. 359; Provident Sav. L. Assur. Soc. v. Ford, 114 U. S. 635, 639; 15 York v. Texas, 137 U. S. 15. 16 Southern Pacific Co. v. Denton, 146 U. S. 202; Mexican Central Ry. Co. v. Pinckney, 149 U. S. 194; Galveston, H. & S. A. Fy. Co. v. Gonzales, 151 U. S. 496. 17 Thayer v. Wales, 5 Fisher's Pat. Robinson v. Nat. S. Co., 12 Fed. R. was not "found" and did not reside within the district.2 Where the fact that the defendant does not reside in the district appears upon the face of the plaintiff's pleading, the want of jurisdiction may be raised by demurrer and is not waived by answer after a demurrer upon this ground has been improperly overruled. A general appearance also waives an omission of the name of the defendant from the prayer of process, provided he was named in another part of the bill. A general appearance does not waive an objection to the jurisdiction of the court upon the ground of a lack of the requisite difference of citizenship. A general appearance does not admit the validity of a writ of foreign attachment previously issued." If a party joins with a special appearance and motion to set aside service of process a motion to dismiss the suit on another ground, he thereby waives his objection to the irregularity of service, and his proceeding is equivalent to a general appearance.' After a special appearance for the purpose of objecting to the jurisdiction has been made, and the objection overruled, the right to insist upon this objection on an appeal is not lost by a subsequent appearance and defense to the suit upon the merits. The court has power to allow a general appearance 361; s. c., 20 Blatchf. 513; Buerk v. pleading was filed or served, and the Imhaeuser, 8 Fed. R. 457. 2 St. Louis & S. F. Ry. Co. v. McBride, 141 U. S. 127, 132; Sayles v. Northwestern Ins. Co., 2 Curt. 212; Shields v. Thomas, 18 How. 253, 259; Toland v. Sprague, 12 Pet. 300, 331; Provident Sav. L. Assur. Soc. v. Ford, 114 U. S. 635, 639; Central Tr. Co. v. McGeorge, 151 U. S. 129; Int. Constr. & I. Co. v. Gibney, 160 U. S. 217; Texas & Pac. Ry. Co. v. Saunders, 151 U. S. 105. But see Noyes v. Canada, 30 Fed. R. 665; Reinstadler v. Reeves, 33 Fed. R. 308. Held, that a general appearance waived the objection that the defendants were not residents of the district. Lowry v. Tile M. & G. Ass'n, 98 Fed. R. 817. 3 Southern Pac. R. Co. v. Denton, 146 U. S. 202. So held where a general appearance was made, after the service of a summons, but before a defendant did not then know that the sole ground of jurisdiction was a diversity of citizenship. Crown Cotton Mills v. Turner (S. D. N. Y.), 82 Fed. R. 337. 4 Segee v. Thomas, 3 Blatchf. 11; Buerk v. Imhaeuser, 8 Fed. R. 457. 5 Romaine v. Union Ins. Co., 28 Fed. R. 625; U. S. R. S. 1 Supp., pp. 173, 175; 18 St. at L. 470; Act of March, 3, 1875, § 5. 23. 6 Sackett v. Rumbaugh, 45 Fed. R. 7 Fitzgerald & M. C. Co. v. Fitzgerald, 137 U. S. 98; Jones v. Andrews, 10 Wall. 327; St. Louis & S. F. Ry. Co. v. McBride, 141 U. S. 127, 132; Edgell v. Felder (C. C. A.), 84 Fed. R. 69. But see U. S. v. Am. Bell Tel. Co., 29 Fed. R. 17; McGillin v. Claflin, 52 Fed. R. 657. 8 Harkness v. Hyde, 98 U. S. 476; to be changed by amendment to a special appearance, or to be withdrawn.10 § 102. When an appearance must be made.-"The appearance-day of the defendant shall be the rule-day to which the subpoena is made returnable, provided he has been served with process twenty days before that day; otherwise, his appearance-day shall be the next rule-day succeeding the rule-day when the process is returnable." The first Monday of each month is a rule-day. A defendant may appear at any time after the filing of the bill, and before the time named in the rule has expired. The court has power to enlarge the time for an appearance, if special cause therefor be shown. Mexican C. Ry. Co. v. Pinckney, 149 13 Pet. 23; First Nat. Bank v. CunU. S. 194 9 U. S. v. Yates, 6 How. 605; Hohorst v. Hamburg Am. P. Co., 38 Fed. R. 273. 10 Rhode Island v. Massachusetts, 18 ningham, 48 Fed. R. 510. Heyman v. Uhlman, 34 Fed. R. 686. CHAPTER VII. TAKING BILLS PRO CONFESSO. § 103. When a bill may be taken pro confesso. If a defendant fails to enter his appearance on or before the day at which the writ is returnable, the bill may be taken as confessed, pro confesso, by him.' Where the bill when the sub § 103. Equity Rule 12. "By the early practice of the civil law, failure to appear at the day to which the cause was adjourned was deemed a confession of the action, but in later times this rule was changed, so that the plaintiff, notwithstanding the contumacy of the defendant, only obtained judgment in accordance with the truth of the case as established by an ex parte examination. Keller, Proceed. Rom., § 69. The original practice of the English Court of Chancery was in accordance with the Roman law. Hawkins v. Crook, 2 P. Wms. 556. But for at least two centuries past bills have been taken pro confesso for contumacy. Ibid. Chief Baron Gilbert says: 'Where a man appears by his clerk in court, and after lies in prison, and is brought up three times in court by habeas corpus, and has the bill read to him, and refuses to answer, such public refusal in court does not amount to a confession of the whole bill. Secondly, when a person appears and departs without answering, and the whole process of the court has been awarded against him after his appearance and departure, to the sequestration; there also the bill is taken pro confesso, because it is presumed to be true when he has appeared and departs in despite of the court, and with stands all its process without answering.' Forum Romanum, 36. Lord Hardwicke likened a decree pro confesso to a judgment by nil dicit at common law, and to judgment for plaintiff on demurrer to the defendant's plea. Davis v. Davis, 2 Atk. 21. It was said in Hawkins v. Crook, qua supra, and quoted in 2 Eq. Cas. Ab. 179, that 'the method in equity of taking a bill pro confesso is consonant to the rule and practice of the courts at law, where, if the defendant makes default by nil dicit, judgment is immediately given in debt, or in all cases where the thing demanded is certain; but where the matter sued for consists in damages, a judgment interlocutory is given; after which a writ of inquiry goes to ascertain the damages, and then the judgment follows' The strict analogy of this proceeding in actions of law to a general decree pro confesso in equity in favor of the complainant, with a reference to a master to take a necessary account, or to assess unliquidated damages, is obvious and striking. A carefully prepared history of the practice and effect of taking bills pro confesso is given in Williams v. Corwin, Hopkins Ch. 471, by Hoffman, Master, in a report made to Chancellor Sanford, of New York." Bradley, J., in Thomson v. Wooster, 114 U. S. 104, 119, 120. pœna was served did not show jurisdiction against a defendant, a subsequent amendment stating facts sufficient to show jurisdiction against it will not warrant the entry of an order taking the bill as confessed without a second service of the subpoena, or an appearance by such defendant." The same practice should probably be observed when the bill is amended so as to state a new case or to bring in new parties. As to the rule when trivial amendments are added to the bill, the practice in the United States is unsettled. Where an amended bill filed without leave after a default in defendant's appearance was withdrawn without the payment of costs or furnishing a copy to him, it was held that the right to have the original bill taken as confessed had not been waived. If a defendant fails to file a plea, answer, or demurrer, to the bill on or before the rule-day next succeeding that of entering his appearance, the plaintiff may have the bill taken pro confesso, unless the defendant has had his time enlarged for cause shown by a judge of the court. A bill may be also taken as confessed upon the failure of a defendant to answer within the time allowed him after a demurrer or plea has been overruled.' In a proper case, part of a bill may be taken as confessed." Thus, where the defendant had repeatedly failed to answer an interrogatory, the parts of the bill which the same affected were ordered taken as confessed." So where exceptions to an answer for insufficiency have been sustained, the complainant may, if he chooses, enter an order taking as confessed the parts of the bill to which the exceptions relate.10 It seems that, in the absence of a rule upon the subject, the complainant in such a case might, at his election, have either the whole 2 Non-Magnetic Watch Co. v. Asso. H. of Geneva, 45 Fed. R. 210. But see Brown v. Lake Sup. Iron Co., 134 U. S. 530; Nelson v. Eaton, 66 Fed. R. 376. 3 Nelson v. Eaton, 66 Fed. R. 378; Bank of Utica v. Finch, 1 Barb. Ch. (N. Y.) 75; Weightman v. Powell, 2 De G. & S. 570; Beecher v. Ireland, 46 Kan. 97. 4 The English rule was that a new subpoena must be served. Weightman v. Powell, 2 De G. & S. 570. See also Blythe v. Hinckley, 84 Fed. R. 228; Harris v. Deitrich, 29 Mich. 366. Contra, Bond v. Howell, 11 Paige (N. Y.), 233. 5 Sheffield Furnace Co. v. Witherow, 149 U. S. 574, 576. 6 Equity Rule 18. 7 Suydam v. Beals, 4 McLean, 12. 8 Ibid.; Hale v. Cont. L. Ins. Co., 20 Fed. R. 344. 9 Hale v. Cont. L. Ins. Co., 20 Fed. R. 344. 10 Equity Rule 64; infra, § 153. |