bill or the parts insufficiently answered taken as confessed."1 It is uncertain whether, when the defendant after answering the original bill fails to file a further answer to material amendments thereof, the complainant is entitled to have the whole bill taken as confessed, or only the part unanswered.12 It is doubtful whether a bill can be taken as confessed against an infant or other person under a disability.13 Certainly, it cannot before a guardian ad litem has been appointed." Should the guardian refuse to answer, the safer course for the complainant would be to obtain a reference to a master and prove the allegations of the bill before him.15

§ 104. Practice in taking a bill pro confesso.- When a defendant fails to appear or to plead in due time, "the plaintiff may, at his election, enter an order (as of course) in the orderbook, that the bill be taken pro confesso; and thereupon the cause shall be proceeded in ex parte, and the matter of the bill may be decreed by the court at any time after the expiration of thirty days from and after the entry of said order, if the same can be done without an answer, and is proper to be decreed; or the plaintiff, if he requires any discovery or answer to enable him to obtain a proper decree, shall be entitled to process of attachment against the defendant to compel an answer, and the defendant shall not, when arrested upon such process, be discharged therefrom, unless upon filing his answer, or otherwise complying with such order as the court or judge thereof may direct, as to pleading to or fully answering the bill, within a period to be fixed by the court or judge, and undertaking to speed the cause."

11 Abergavenny v. Abergavenny, 2 Eq. Ca. Abr. 178; Weaver v. Liv. ingston, Hopk. Ch. (N. Y.) 595; Turner v. Turner, 1 Dickens, 316; Smith v. St. Louis Mut. L. Ins. Co., 2 Tenn. Ch. 605. But see Bacon v. Griffith, 2 Dickens, 473; Dennison v. Bassford, 7 Paige (N. Y.), 370.

12 Suydam v. Beals, 4 McLean, 12, 15. The latter practice seems to be favored in Trust & Fire Ins. Co. v. Jenkins, 8 Paige (N. Y.), 589, 593, 594; Hawkins v. Crook, 2 P. Wms. 559; Davis v. Davis, 2 Atk. 23.

No service need be made

13 Compare the positive language of Equity Rule 18, with Mills v. Dennis, 3 J. Ch. (N. Y.) 367; O'Hara v. MacConnell, 93 U. S. 151; Massie v. Donaldson, 8 Ohio, 377; Chaffin v. Kimball, 23 Ill. 36, 38.

14 O'Hara v. MacConnell, 93 U. S.

151.

15 Mills v. Dennis, 3 J. Ch. (N. Y.) 367.

§ 104. Equity Rule 18. See Read v. Consequa, 4 Wash. 174; O'Hara v. MacConnell, 93 U. S. 150, 152. Doubts have been expressed as to the pro

of the order taking the bill pro confesso." "When the bill is taken pro confesso the court may proceed to a decree at any time after the expiration of thirty days from and after the entry of the order to take the bill pro confesso; and such decree rendered shall be deemed absolute, unless the court shall, at the same term, set aside the same, or enlarge the time for filing the answer, upon cause shown, upon motion and affidavit of the defendant; and no such motion shall be granted unless upon payment of the costs of the plaintiff in the suit up to that time, or such part thereof as the court shall deem reasonable, and unless the defendant shall undertake to file his answer within such time as the court shall direct, and submit to such other terms as the court shall direct, for the purpose of speeding the cause." The application in the Federal courts should be made by motion' supported by an affidavit showing the excuse for his default, and also, unless a verified answer accompanies the application, which is the better practice, showing the nature of the defense." If the defense seems to the court to be unconscientious, the application may be denied. In the State courts, applications to open defaults have been denied where the defendants wished to plead a discharge in bankruptcy, and in one case where the complainant's prin

priety of entering such an order pending a motion upon a special appearance to quash a subpoena or in the case of a cross-bill to dismiss the original bill as against the cross-complainants. Blythe v. Hinckley, 84 Fed. R. 228.

2 Bank of U. S. v. White, 8 Pet. 262. See Oakley v. O'Neill, 2 N. J. Eq. 287.

Equity Rule 19. See Maynard v. Pomfret, 3 Atk. 468; Heyn v. Heyn, Jacob, 49. Great liberality should be shown to non-residents served by publication. American F. L. M. Co. v. Thomas (C. C. A.), 71 Fed. R. 782. A default caused by an error of a clerk should not prejudice a defendant. Blythe v. Hinckley, 84 Fed. R. 228.

4 French v. Stewart, 22 Wall. 238. 5 Schofield v. Horse S. C. Co., 65 Fed. R. 433; Massachusetts B. L. Ass'n v. Lohmiller, 74 Fed. R. 23; Wells v.

Cruger, 5 Paige (N. Y.), 164; Winship v. Jewett, 1 Barb. Ch. (N. Y.) 173; Goodhue v. Churchman, 1 Barb. Ch. (N. Y.) 596; Keil v. West, 21 Fla. 508; Emery v. Downing, 13 N. J. Eq. 59. But see Metcalf v. Landers, 3 Baxt. (Tenn.) 35.

6 Parker v. Grant, 1 J. Ch. (N. Y.) 434; Quincy v. Foot, 1 Barb. Ch. (N. Y.) 496; Freeman v. Warren, 3 Barb. Ch. (N. Y.) 635; Baxter v. Lansing, 7 Paige (N. Y.), 350; National Fire Ins. Co. v. Sackett, 11 Paige (N. Y.), 660. It has been said that in the Federal courts, where there is color of claim that due service was made, a default will not be opened unless a defense on the merits is shown. Massachusetts B. L. Ass'n v. Lohmiller (C. C. A.), 74 Fed. R. 23. 7 Freeman v. Warren, 3 Barb. Ch (N. Y.) 635.

14

cipal witness had died between the default and the motion. Where defendants wished to plead usury, relief has been conditioned upon payment of the principal,' and upon a waiver of defense to the claim for the principal and legal interest.1 An assignee of the subject-matter of the suit, by an assignment made after the default, has no more right to come in and defend than was possessed by the original defendant;" but special favor is shown to assignees for the benefit of creditors.12 It has been held that after the term, a decree taking a bill as confessed cannot be set aside on motion,13 unless the motion was made or noticed at the term when the decree was entered, even where there is a rule of the State court permitting such a practice.15 Thus, the entry of a final decree by default upon notice to the defendants, without the entry of a formal order or interlocutory decree taking the bill as confessed, was held to be an irregularity for which the decree would not be set aside upon motion at a subsequent term.16 But a decree taking a bill as confessed was set aside upon motion at a later term when it had been entered after appearance and before the time to plead had expired." And in a proper case such a decree can be set aside by an original bill.18 A decree pro confesso is not as of course according to the prayer of the bill, nor such as the complainant chooses to take; but it is made by the court according to what is proper to be decreed upon the assumption that the statements in the bill are true.19 "The matter of the bill ought at least to be opened and explained to the court whenever the decree is applied for, so that the court may see that the decree is a proper one." 20

8 Wooster v. Woodhull, 1 J. Ch. (N. Y.) 539.

9 Bard v. Fort, 3 Barb. Ch. (N. Y.) 632.

10 Quincy v. Foot, 1 Barb. Ch. (N. Y.) 496; Watt v. Watt, 2 Barb. Ch. (N. Y.) 371; National Fire Ins. Co. v. Sackett, 11 Paige (N. Y.), 660.

14 Stuart v. St. Paul, 63 Fed. R. 664. 15 Austin v. Riley, 55 Fed. R. 833. 16 Linder v. Lewis, 1 Fed. R. 378. See Stuart v. St. Paul, 63 Fed. R. 688. 17 Fellows v. Hall, 4 McLean, 281. 18 Thomson v. Wooster, 114 U. S. 104, 112; infra, §§ 358, 359.

19 Bradley, J., in Thomson v. Woos

11 Watt v. Watt, 2 Barb. Ch. (N. Y.) ter, 114 U. S. 104, 113; Andrews v. 371.

12 Blanchard v. Cooke, 144 Mass. 207. 13 Allen v. Wilson, 21 Fed. R. 881; Linder v. Lewis, 1 Fed. R. 378; Stuart v. St. Paul, 63 Fed. R. 644.

Cole, 20 Fed. R. 410; Rose v. Woodruff, 4 J. Ch. (N. Y.) 547, 548.

20 Bradley, J., in Thomson v. Wooster, 114 U. S. 104, 113, 114.

It has been said: "The bill, when confessed by the default of the defendant, is taken to be true in all matters alleged with sufficient certainty; but in respect to matters not alleged with due certainty, or subjects which from their nature and the course of the court require an examination of details, the obligation to furnish proofs rests on the complainant." In the State courts a decree pro confesso is usually not taken against an infant without proof of the facts.2 The Federal practice in this respect is not settled. When the bill relates to an unsettled account, a reference to a master is always necessary.23 The equity rules provide that, after an order taking the bill pro confesso for a default in pleading, "thereupon the same shall be proceeded in ex parte." 24 Whether this deprives the defendant of the right to notice of subsequent proceedings and to appear before the master is doubtful.25 By the English practice, the defendant, after a decree pro confesso and a reference for an account, was entitled to have notice of the proceedings and to a hearing before the master. Where a bill for the infringement of a patent alleges infringement of “the in

21 Master Hoffman in Williams v. Corwin, Hopkins' Ch. 471; quoted by Bradley, J., in Thomson v. Wooster 114 U. S. 104, 110, 111. See Ohio Central R. Co. v. Central Tr. Co., 133 U. S. 83, 91.

22 Chaffin v. Kimball, 23 Ill. 36, 38; Ingersoll v. Ingersoll, 42 Miss. 155; Massie v. Donaldson, 8 Ohio, 377, 381. Cf. O'Hara v. MacConnell, 93 U. S. 151.

of the decree, and upon such other questions as can be presented upon the complainant's pleadings and proofs. This is the uniform construction given to the rule throughout this circuit." Wallace, J., in Bennett v. Hoefner, 17 Blatchf. 341, 342. The same rule prevails in the Ninth Circuit. Southern Pac. Co. v. Temple, 59 Fed. R. 17. It has been held in the Eighth Circuit that after

23 Pendleton v. Evans, 4 Wash. 104, an order that the bill be taken as

confessed, no notice of the motion for a decree need be given to the defendant, although he has entered an appearance, provided that the motion be made in open court. Austin v. Riley, 55 Fed. R. 833.

26 Heyn v. Heyn, Jacob, 49. So in the New York Chancery. 1 Hoffman Ch. Pr. 520; 1 Barb. Ch. Pr. 479. In New Jersey the rule was discretionary. Brundage v. Goodfellow, 4 Halst. Ch. 513; Thomson v. Wooster, 114 U. S. 104, 119, 120.

28

vention" of the plaintiffs, and is taken as confessed, it seems that it cannot be claimed in subsequent proceedings in the same suit that the patent is void upon its face.27 When there are more than one defendant who are charged with a joint liability, after the bill has been taken as confessed against one, no final decree can be made against him, unless and until a decree is entered against those who appear and defend the suit; 2 and if the bill is finally dismissed upon the merits as to them, it will be dismissed as to the defaulter also.29 But the rule seems to be otherwise where his liability is distinct and several.30 It seems that a decree taking a bill as confessed is of no effect unless followed by, or included in, a final decree. An appeal can be taken from the final decree after a bill has been taken as confessed. Upon such an appeal the decree may be reversed for a defect in the service of the subpoena; for failure to appoint a guardian ad litem, when required; it seems for a want of indispensable parties," and for a failure to set aside the decree upon a proper application.35 The only question for the consideration of the court is whether the allegations in the bill are sufficient to support the decree. It seems that the objection that the complainant had an adequate remedy at law rests in the discretion of the court of first instance, and that it cannot be waived in the appellate court by a defendant who is in default. Where the defendant had not moved until nine months after the appointment of a receiver, and meanwhile the bill had been taken as confessed, it was held to be too late to take this objection.38

27 Dobson v. Hartford Carpet Co., 114 U. S. 439, 446, 447; Reedy v. Western El. Co. (C. C. A.), 83 Fed. R. 709.

28 Frow v. De La Vega, 15 Wall. 552. 29 Terry v. Fontaine's Adm'r, 83 Va. 451; Petty v. Hannum, 2 Humph. (Tenn.) 102; Butler v. Kenzie, 41 Tenn. Ch. 110; s. C., 15 S. W. R. 1068; Clason v. Morris, 10 Johns. (N. Y.) 524; Kooper v. Dyer, 59 Vt. 477.

30 Andrews v. Lee, 1 Dev. & B. Eq. (N. C.) 318; Simpson v. Moore, 5 Lea (Tenn.), 376.

31 Frow v. De La Vega, 15 Wall. 552; Butterworth v. Hill, 114 U. S. 128.

32

32 O'Hara v. MacConnell, 93 U. S. 150; Butterworth v. Hill, 114 U. S. 128.

33 O'Hara v. MacConnell, 93 U. S. 150.

34 Ibid.

35 American F. L. M. Co. v. Thomas (C. C. A.), 71 Fed. R. 782; Nelson v. Eaton (C. C. A.), 66 Fed. R. 376.

36 Masterson v. Howard, 18 Wall. 99; Ohio C. R. Co. v. Central Tr. Co., 133 U. S. 83.

37 Brown v. Lake Superior Iron Co., 134 U. S. 530; Western Elec. Co. v. Reedy, 66 Fed. R. 163.

38 Brown v. Lake Superior Iron Co., 134 U. S. 530.