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.20

§ 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 Ill. 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.34

80 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.

83 Moore v. Titman, 33 Ill. 358; Buck v. Fischer, 2 Colo. 182; Mussina v. Bartlett, 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.

benefit of another, against whom an order pro confesso has been taken.38

§ 150. Nature and effect of orders pro confesso.

There is a difference between orders that bills be taken pro confesso and actual decrees pro confesso. The latter are considered, when compared with the former, more sacred, and to be disturbed only for weighty reasons.39 The only effect of an order pro confesso is to enable the case to be proceeded with ex parte against the defendant as to whom it is taken. When such an order is entered, the cause must be brought to a hearing, as well as in other cases.40 It is said that an order for a bill to be taken pro confesso is interlocutory, and intended to prepare the case for the final decree. Its effect is similar to that of a default in an action at common law, by which the defendant is deemed to have admitted all that is well pleaded in the declaration. The defendant has lost his standing in court, but the matters set forth in the bill do not pass in rem judicatam until the final decree. The bill is still to be read, that the court may then determine whether there is cause, upon the allegations, to decree for the complainant, and it by no means follows that such will be the decree.41 Under the practice prevailing in most jurisdictions, including the federal courts, a decree pro confesso is not a decree, as of course, according to the prayer of the bill, nor merely such as the complainant chooses to make it, but it should be made by the court according to what is proper to be decreed upon the statements of the bill, assumed to be true.42

38 Simpson v. Moore, 5 Lea (Tenn.) 372. See Ft. Payne Bank v. Alabama Sanitarium, 103 Ala. 358, 15 So. 618; Butler v. Kinzie, 90 Tenn. 31, 15 S. W. 1068.

39 Robertson v. Miller, 3 N. J. Eq. 451; Knight v. Young, 2 Ves. & B. 184.

40 1 Barbour, Ch. Pr. 369; Rose v. Woodruff, 4 Johns. Ch. (N. Y.) 547; Lockhart v. Horn, 3 Woods, 542, Fed. Cas. No. 8,446.

41 Rose v. Woodruff, 4 Johns. Ch. (N. Y.) 547, 1 N. Y. Ch. Rep. (L. Ed.) 932, note; Russell v. Lathrop, 122 Mass. 300; Forbes v. Tuckerman, 115 Mass. 115.

42 Thomson v. Wooster, 114 U. S. 104; Andrews v. Cole, 20 Fed. 410;

Under the English chancery practice, it was necessary that an order taking a bill for confessed be entered before a final decree pro confesso could be rendered.43 In some jurisdictions it is held that the omission to enter a formal order that a bill be taken pro confesso against the defendants will not affect the regularity of the final decree, or make it any the less absolute.44 It would seem to be the better practice to enter such an order prior to the rendition of the final decree.1

§ 151. Decrees pro confesso.

45

As heretofore stated, where a bill is taken pro confesso, the cause must be brought to a hearing as in other cases.46 Where it appears upon the hearing that the complainant has no equity, the bill will be dismissed.47 Like any other decree, it cannot be impeached collaterally, but only upon a bill of review or to set it aside for fraud, or by appeal or error, where such proceeding is extended to the chancery practice." A cause in

48

Rose v. Woodruff, 4 Johns. Ch. (N. Y.) 547; Geary v. Sheridan, 8 Ves. 192; Barrett v. Birmingham, 1 Ir. Eq. 417; Ohio Cent. R. Co. v. Central Trust Co. of New York, 133 U. S. 83. See, however, 1 Hoffman, Ch. Pr. 551.

43 Shields' Heirs v. Bryant, 3 Bibb (Ky.) 525; Groce v. Field, 13 Ga. 29; 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 518. See Albright v. Texas, S. F. & N. R. Co., 8 N. M. 422, 46 Pac. 448.

Linder v. Lewis, 1 Fed. 378; Savage v. Berry, 2 Scam. (Ill.) 545; Bank of United States v. White, 8 Pet. (U. S.) 262. In Maryland it is held that the recital in a decree that an order to take the bill pro confesso, etc., has been duly served, is sufficient evidence of the fact in the appellate court, in the absence of all direct proof to the contrary. Fitzhugh v. McPherson, 9 Gill & J. (Md.) 51, citing Rigden v. Martin, 6 Har. & J. (Md.) 407. See, also, Cole v. Johnson, 53 Miss. 94.

45 Linder v. Lewis, 1 Fed. 381; Bank of St. Marys v. St. John, 25 Ala. 566; Long v. Long, 9 Md. 348; Stephenson v. Parkins, 2 Edw. Ch. (N. Y.) 218; Thomson v. Wooster, 114 U. S. 104.

461 Barbour, Ch. Pr. 369; Rose v. Woodruff, 4 Johns. Ch. (N. Y.) 547; Geary v. Sheridan, 8 Ves. 192. See post, § 705.

47 Landon v. Ready, 1 Sim. & S. 44.

481 Barbour, Ch. Pr. 370; Wooster v. Woodhull, 1 Johns. Ch. (N. Y. 541; Ogilvie v. Herne, 13 Ves. 563. See, however, Knight v. Young, 2 Ves. & B. 184.

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