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.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

18 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.

20

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.2 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.

ciently, are not to be taken for confessed.23 It is said that whenever a bill not answered at all is taken for confessed for want of an answer, all the matters therein charged, whether they involve a penalty, forfeiture, or infamous punishment or not, or whether they are confined to the defendant's knowledge or not, are to be considered as admitted, and a decree pronounced upon them as if true.24 Upon a bill taken for confessed against a defendant, no relief can be granted beyond the fair scope of its allegations and prayers.25 Upon a proceeding for partition, if the decree exceeds the prayer of the bill, which was taken pro confesso, it may be reversed.26

§ 146. Proof of bill.

It is held that the bill, when taken as 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 matters which, from their nature and the course of the court, require an examination of details, the obligation to furnish proof rests on the complainant.27 It is purely a matter of discretion with the court whether it will require the complainant to make proof against defendants who fail to answer.28 A party against whom a bill has been taken for confessed cannot complain and assign for error that the proof does not sustain the allegations of the bill.29 He has no right

23 Craig v. Horine, 1 Bibb (Ky.) 113.

24 Atterberry v. Knox, 8 Dana (Ky.) 282.

25 Wing v. Cropper, 35 Ill. 256; Goodhue v. Churchman, 1 Barb. Ch. (N. Y.) 596; Johnston v. Kelly, 80 Ala. 135; Chadwell v. McCall, 1 Tenn. Ch. 640; Doak v. Stahlman (Tenn. Ch. App.) 58 S. W. 741.

28 Forquer v. Forquer, 21 Ill. 294. See, also, Gold v. Ryan, 14 Ill. 53. 27 Williams v. Corwin, Hopk. Ch. (N. Y.) 471; Colerick v. Hooper, 3 Ind. 316, 56 Am. Dec. 505; Harmon v. Campbell, 30 Ill. 25; Ward v. Jewett, Walk. (Mich.) 45; Welsh v. Solenberger, 85 Va. 441, 8 S. E. 91; Davis v. Speiden, 3 MacArthur (D. C.) 283; Henry v. Seager, 80 I11. App. 172; Ohio Cent. R. Co. v. Central Trust Co. of New York, 133 U. S. 83.

28 Ferguson v. Sutphen, 8 Ill. 547; Manchester v. McKee, 9 Ill. 511. 29 Manchester v. McKee, 9 Ill. 511; Johnson v. Donnell, 15 Ill. 97; Roby v. Chicago Title & Trust Co., 194 Ill. 228, 62 N. E. 544.

to have the evidence, if the court hear any, preserved in the record.30 Where evidence is heard, the presumption is that the court heard all the evidence that was necessary to sustain a decree.31 If the proofs introduced destroy the case made by the bill, the complainant can have no decree in his favor.32

§ 147. Reference to determine complainant's claims.

Where a bill is taken pro confesso, the court may refer the cause to a master, to compute the amount due, or to take proof and report to the court.33

§ 148. Notice to defendant.

It is held in some jurisdictions that a distinction exists between a case where a defendant has appeared and failed to answer, and a case where a defendant has failed to appear. A defendant who has appeared by his solicitor is entitled to notice of all the subsequent proceedings in the cause, although he suffers the complainant's bill to be taken as confessed; and a decree against him ex parte, without notice to his solicitor, at the hearing, will be set aside as irregular.3

34

30 Farnsworth v. Strasler, 12 Ill. 482; Smith v. Trimble, 27 Ill. 152. 81 Moore v. Titman, 33 Ill. 358.

82 Atkins v. Faulkner, 11 Iowa, 326; Laney v. Laney, 4 Ind. 153. It is said that an order pro confesso is equivalent to an answer admitting the allegations of the bill to be true. Stone v. Duncan, 1 Head (Tenn.) 103. A pro confesso much more nearly resembles an answer admitting the charges of the bill than a demurrer. Patterson v. Ingraham, 23 Miss. 87.

33 Moore v. Titman, 33 Ill. 358; Buck v. Fischer, 2 Colo. 182; Mussina v. Bartlett, 8 Port. (Ala.) 277; Chapman v. Gibbons, 44 Miss. 113; Armstrong v. Douglas Park Bldg. Ass'n, 60 Ill. App. 318; Southwick v. Van Bussum, 1 Paige (N. Y.) 648. See, also, Hazard v. Durant, 12 R. I. 99. Upon taking a bill as confessed, the court may enter a decree pro confesso, or refer the case to a master to take proof and report, and, when so referred, it is held that the defendant has a right to appear and cross-examine the witnesses for complainant, but that he has no right to offer evidence of matters of defense not set up in an answer. Bauerle v. Long, 165 Ill. 340, 46 N. E. 227.

84 Hart v. Small, 4 Paige (N. Y.) 551; Armstrong v. Douglas Park Bldg. Ass'n, 60 Ill. App. 318; Van Valkenburg v. Trustees of Schools,

§ 149. Effect of defense by one of several defendants.

Where a bill is filed against joint defendants, and is taken for confessed against one or more of them, and one or more of the other defendants appear, make defense, and disprove complainant's case, the bill should be dismissed as to all defendants.35 As a general rule, the answer of one defendant is not evidence against his co-defendants, and the failure of one defendant to answer, and a pro confesso decree against him, do not entitle the complainant to take the allegations of the bill as true as against another who does answer.36 If one of several defendants to a bill making a joint charge of conspiracy and fraud makes default, his default and a formal decree pro confesso may be entered, but no final decree will be made on the merits until the case is disposed of with regard to the other defendants. The defaulting defendant is simply out of court, and can take no further part in the case.37 In a suit against defendants whose defenses are the same, though they are personal to each, a discharge of one of them will not inure to the

66 Ill. 104; Southern Pac. R. Co. v. Temple, 59 Fed. 18; Wampler v. Wolfinger, 13 Md. 337; Mussina v. Bartlett, 8 Port. (Ala.) 277; Buck v. Fischer, 2 Colo. 182; Moore v. Titman, 33 Ill. 358. For practice in other jurisdictions, see Clinch River Mineral Co. v. Harrison, 91 Va. 122, 21 S. E. 660; Bank of United States v. White, 8 Pet. (U. S.) 262; Austin v. Riley, 55 Fed. 833. In New Jersey it is held that a decree pro confesso may be taken at any time, as of course, after the time has expired within which the defendant is required to plead, demur, or answer, and without notice, unless it appears that some prejudice will thereby accrue to the adverse party. Oakley v. O'Neill, 2 N. J. Eq. 287.

35 Driver v. White (Tenn. Ch. App.) 51 S. W. 994; Hargrove v. Martin, 6 Smedes & M. (Miss.) 61; McDaniel v. Goodall, 2 Cold. (Tenn.) 391; Ashby v. Bell's Adm'r, 80 Va. 811; Walsh v. Smyth, 3 Bland (Md.) 9; Cartigne v. Raymond, 4 Leigh (Va.) 579; Farmers' Bank of State of Delaware v. Gilpin, 1 Har. (Del.) 561; Lingan v. Henderson, 1 Bland (Md.) 236; Kelly v. Brooks, 57 Miss. 225.

36 Holloway v. Moore, 4 Smedes & M. (Miss.) 594; Fulton v. Woodman, 54 Miss. 158.

37 Frow v. De la Vega, 15 Wall. (U. S.) 552; Kopper v. Dyer, 59 Vt. 477, 9 Atl. 4, 59 Am. Rep. 742.