ing to the fact that bills can now be taken pro confesso against a defendant without the entry of an appearance, the use of the writ of distringas and of sequestration has ceased.

ors of Grammar School, 1 Fowler, Ex. Pr. 202; Harvey v. East India Co., Finch, Prec. Ch. 129.

(184)

CHAPTER VII.

TAKING BILLS AS CONFESSED.

§ 140. In general.

As has been heretofore seen, by the practice of the English court of chancery the writ of subpoena taken out by the complainant on filing a bill, not only commanded the defendant to enter his appearance, but also required him to answer the bill.1 Formerly an appearance was absolutely necessary to be entered. before a decree pro confesso could be had against the defendant. In most jurisdictions there has been adopted a method of rendering the process effectual by treating the defendant's contumacy as an admission of the complainant's case; and the court will, in certain cases, make an order that the facts of the bill shall be considered as true, and decree against the defendant according to the equity arising upon the case stated by the complainant. This proceeding is termed "taking the bill pro confesso," or "as confessed." This practice is not of very ancient standing.*

§ 141. When a bill may be taken for confessed.

The practice in taking bills for confessed was regulated, in England, and is usually regulated in the state and federal courts, by statutes or rules of court. It is error to default a defendant

11 Barbour, Ch. Pr. 49, 54, 77.

21 Barbour, Ch. Pr. 77; Mitford & T. Pl. & Pr. in Eq. 432; 1 Hoffman, Ch. Pr. 184, 185; Gibson v. Scevengton, 1 Vern. 247; Williams v Corwin, Hopk. Ch. (N. Y.) 471.

Mitford &T. Pl. & Pr. in Eq. 432; 1 Barbour, Ch. Pr. 90.

41 Barbour, Ch. Pr. 90; Lanum v. Steel, 10 Humph. (Tenn.) 280. 5 Beach, Mod. Eq. Pr. § 191; Mitford & T. Pl. & Pr. in Eq. 423. For practice in the federal courts on taking bills as confessed, see United States Equity Rules, 18, 19. See, also, Thomson v. Wooster, 114 U. S

8

where there is a plea or answer on file. To render a final decree upon the filing of a cross bill, granting the relief thereby sought, when no answer has been filed by the defendants, nor any steps taken to place them in default, is error. Where an answer is excepted to as insufficient, and the exceptions are sustained, and no further answer is put in, the complainant can disregard the answer altogether, and take the bill pro confesso. It is held that when an answer is actually put in after the proper time, but before an order taking a bill pro confesso, and a decree for want of answer is made, it is irregular to take such latter order without first removing the answer from the record; and that a bill answered in part may be taken as confessed in other parts not answered.10 Where an answer was put in without defendant's signature, it was ordered to be taken off the files for irregularity; and no suggestion being made that there was any defense, and the answer having evidently been put in for delay, it was ordered that the bill be taken as confessed for want of an answer.12

§ 142. Necessity for service of process.

A decree pro confesso cannot be rendered against a defendant

104, where the question is fully considered; O'Hara v. McConnell, 93 U. S. 150. For Illinois practice, see Rev. St. Ill. c. 22, §§ 16-18.

• Wright v. McKean, 13 N. J. Eq. 259; Griswold v. Brock, 29 Ill. App. 423; Smith v. Cozart, 45 Miss. 698; Young v. Young, 17 N. J. Eq. 161; Jordan v. Jordan, 16 Ga. 446.

7 Western Union Telegraph Co. v. Pacific & Atlantic Telegraph Co., 49 Ill. 90.

81 Newland, Ch. Pr. 95; Lea v. Vanbibber, 6 Humph. (Tenn.) 18; Work v. Hall, 79 Ill. 196; Smith v. St. Louis Mut. Life Ins. Co., 2 Tenn. Ch. 605.

9 Maxwell v. Jarvis, 14 Wis. 506.

10 Weaver v. Livingston, Hopk. Ch. (N. Y.) 670; Abergavenny v. Abergavenny, 2 Eq. Abr. 179; Hale v. Continental Life Ins. Co., 20 Fed. 344. See, also, Smith v. St. Louis Mut. Life Ins. Co., 2 Tenn. Ch. 605; Turner v. Turner, 1 Dickens, 316. Where, under Rev. St. Ill. c. 22, § 24, a bill is taken as confessed for insufficient answer, the entire bill is so taken, and not merely that part to which the answer was insufficient. Bauerle v. Long, 165 Ill. 340, 46 N. E. 227.

12 Denison v. Bassford, 7 Paige (N. Y.) 370.

who has not been served with process,13 and the process must have been executed upon the defendant in a proper way, and in sufficient time, or he must have entered his appearance.14

§ 143. Necessity of entry of rule to answer.

In some jurisdictions it is held that, before a complainant shall take a bill pro confesso, the defendant must be ruled to answer.1 15 In Illinois it is held that the rendition of a decree on the overruling of a demurrer to a bill without first ruling the defendant to answer is not error, and that the rendition of a decree upon a bill taken as confessed is a matter of discretion;16 and that, where service by publication is duly made, it is not necessary, under the statute, that defendants be ruled to answer the bill; but that where there is no rule to answer cross bills against defendants therein, no default taken, and no order entered taking such cross bills as confessed against them, it is error to grant the relief prayed therein.17

§ 144. Proof of regularity of proceedings.

In some jurisdictions an affidavit requiring an affirmative showing of the nonappearance or default of the defendant, as

13 Hurter v. Robbins, 21 Ala. 585; Outhwite v. Porter, 13 Mich. 533; Frazier v. Frazier's Ex'rs, 2 Leigh (Va.) 642.

14 Bruschke v. Nord Chicago Schuetzen Verein, 145 Ill. 433, 34 N. E. 417; Chewning v. Nichols, Smedes & M. Ch. (Miss.) 122; King v. Harrington, 14 Mich. 532; Tompkins v. Wiltberger, 56 Ill. 385; Tripp v. Vincent, 8 Paige (N. Y.) 76; Evarts v. Becker, 8 Paige (N. Y.) 506; McCoy's Ex'r v. McCoy's Devisees, 9 W. Va. 443; Central Bank of Frederick v. Copeland, 18 Md. 305; Grewar v. Henderson, 1 Tenn. Ch. 76; Meyer v. Kuhn, 25 U. S. App. 174, 65 Fed. 705; Cook v. Rogers, 64 Ala. 406.

15 Pendleton v. Evans, 4 Wash. C. C. 336, Fed. Cas. No. 10,920; Halderman v. Halderman, Hempst. 407, Fed. Cas. No. 5,908; Sterling v. Ashton, 12 Phila. (Pa.) 227; Nesbit v. St. Patrick's Church, 9 N. J. Eq. 76. For present federal practice, see United States Equity Rule 18; Schofield v. Horse Springs Cattle Co., 65 Fed. 433.

16 Roach v. Chapin, 27 Ill. 194; Grob v. Cushman, 45 Ill. 119. 17 Michael v. Mace, 137 Ill. 485, 27 N. E. 694. For chancery practice in New York, see Livingston v. Woolsey, 4 Johns. Ch. (N. Y.) 365.

a preliminary to an order pro confesso, is required.18 In other jurisdictions no such affidavit is required. This is true in Illinois and the federal courts.

§ 145. Pleadings to sustain decree pro confesso.

The allegations of a bill taken pro confesso are to be construed strictly.19 Though a bill be taken for confessed, if its allegations are not clear, specific, and certain, no decree can be correctly rendered. 20 A decree pro confesso cannot supply the want of equity apparent on the face of a bill.21 A decree pro confesso only concludes defendants to the extent of the averments in the bill. They cannot object to the sufficiency of proof, but only that the averments do not justify the decree.22 Matters of fact, properly alleged in a bill taken pro confesso, must be taken as true; but the deductions of law or results from facts, where those results are stated without alleging the facts suffi

18 Michigan Chancery Rule 16; Low v. Mills, 61 Mich. 35, 27 N. W. 877; Nott v. Hill, 6 Paige (N. Y.) 9; McCahill v. Equitable Assur. Soc.. 26 N. J. Eq. 531.

19 Breckinridge v. Waters' Heirs, 4 Dana (Ky.) 620.

20 Marshall v. Tenant, 2 J. J. Marsh. (Ky.) 155, 19 Am. Dec. 126. 21 West Feliciana R. Co. v. Stockett, 27 Miss. 739; Non-Magnetic Watch Co. of America v. Association Horlogere Suisse of Geneva, 45 Fed. 210; Ohio Cent. R. Co. v. Central Trust Co. of New York, 133 U. S. 83. In Arkansas it is held that, where a decree is rendered on default, the allegations of the bill must be sufficient to warrant the relief prayed for, and granted by the decree; and where the default is upon constructive notice, a greater degree of certainty is required in the allegations than where the decree is rendered on actual service of subpoena or appearance of the defendant, and no intendment of fact not within the allegations can be made to support such decree. Clarke v. Strong, 13 Ark. 491; Brodie v. Skelton, 11 Ark. 132. And if a bill is filed to divest title to land belonging to minors and adults as tenants in common, and the adults enter a disclaimer in favor of the complainant, a decree divesting their title is proper, as they are sui juris, and bound by the disclaimer; but if one of the adults fails to defend, and an order pro confesso is entered against him, the bill showing on its face that complainant is not entitled to the relief he asks, a decree founded alone on such order cannot be made divesting the adult of such title. Ross v. Ramsey, 3 Head (Tenn.) 15.

22 Herring v. Woodhull, 29 Ill. 92, 81 Am. Dec. 296; Gault v. Hoag. land, 25 Ill. 266; Doak v. Stahlman (Tenn. Ch. App.) 58 S. W. 741.