taken as confessed.12 It was formerly uncertain whether, when the defendant after answering the original bill failed to file a further answer to material amendments thereof, the complainant was to have the whole bill taken as confessed, or only the part unanswered.13

It is doubtful whether a bill can be taken as confessed against an infant or other person under a disability.14 Certainly, it cannot before a guardian ad litem has been appointed.15 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.16

§ 172. 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." The order is entered by the clerk without the intervention of a judge.2

Doubts have been expressed as to the propriety of entering such an order pending a motion upon a special appearance to quash a subpoena, or in the case of a cross-bill pending a motion to dismiss the original bill as against the cross-complainants. If a bill is fatally defective and shows that the court has no jurisdiction, it is improper to enter an order or decree taking the same pro confesso. By the former practice, there was no need of serving the order taking the bill pro confesso.5

12 Abergavenny v. Abergavenny, 2 Eq. Ca. Abr. 178; Weaver v. Livingston, 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, 2 Paige (N. Y.), 370.

13 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.

14 Compare the positive language of Equity Rule 16 of 1842, with Mills v. Dennis, 3 J. Ch. (N. Y.)

367; O'Hara v. MacConnell, 93 U. S. 151, 23 L. ed. 842; Massie v. Donaldson, 8 Ohio, 377; Chaffin v. Kimball, 23 Ill. 36, 38.

15 O'Hara v. MacConnell, 93 U. S. 151, 23 L. ed. 842.

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

§ 172. 1 Eq. Rule 16 copied from Eq. Rule 18 of 1842. See Read v. Consequa, 4 Wash. 174; O'Hara v. MacConnell, 93 U. S. 150, 152, 23 L. ed. 840, 842.

2 Eq. Rule 5.

3 Blythe v. Hinckley, 84 Fed. 228. 4 Cuebas v. Cuebas, 223 U. S. 376, 56 L. ed. 476.

5 Eq. Rule 17; Bank of U. S. v.

"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 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. 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." ."'6

7

8

The application in the Federal courts should be made by motion supported by an affidavit showing the excuse for the default, and also, unless a verified answer accompanies the application, which is the better practice, showing the nature of the defense. Great liberality should be shown to non-residents served by publication.9 An error of the clerk of the court; 10 or a default, which resulted from an oversight of the defendant's counsel; 11 or was caused by his attorney's lack of knowledge of the proper mode of procedure in equity; 12 or a justifiable reliance upon the defense of a suit by a person in privity with the default,13 is a reason for allowing the defendant to appear and defend. Where due service was made, a default will not be opened unless a defense on the merits is shown.14 It has been

White, 8 Peters, 262, 8 L. ed. 938. See Oakley v. O'Neill, 2 N. J. Eq. 287.

6 Eq. Rule 17, copied in substance from Eq. Rule 19 of 1842. See Maynard v. Pomfret, 3 Atk. 468; Heyn v. Heyn, Jacob, 49.

7 French v. Stewart, 22 Wall. 238, 22 L. ed. 854.

8 Schofield v. Horse S. C. Co., 65 Fed. 433; Massachusetts B. L. Ass'n v. Lohmiller, 74 Fed. 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; U. S. v.
Whitmire, C. C. A., 188 Fed. 422.
But see Metcalf v. Landers, 3 Baxt.
(Tenn.) 35.

9 American F. L. M. Co. v. Thomas, C. C. A., 71 Fed. 782.

10 Blythe v. Hinckley, 84 Fed. 228. 11 Benjamin Schwarz & Sons v. Kennedy, 156 Fed. 316. But see City of Kansas City, Kan. v. Union Pac. R. Co., C. C. A., 192 Fed. 316. 12 McFarland V. State Savings Bank, 129 Fed. 244.

13 D. & W. Fuse Co. v. Trumbull El. Mfg. Co., 183 Fed. 784.

14 Massachusetts Ben. Life Ass'n v. Lohmiller, C. C. A., 74 Fed. 23.

said that the same rule applies when there is color of claim that due service was made.1 15

:

If the defense seems to the court to be unconscientious, the application may be denied.16 In the State courts, applications to open defaults have been denied where the defendants wished to plead a discharge in bankruptcy,17 and in one case where the complainant's principal witness had died between the default and the motion. 18 Where defendants wished to plead usury, relief has been conditioned upon payment of the principal,19 and upon a waiver of defense to the claim for the principal and legal interest.20 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; 21 but special favor is shown to assignees for the benefit of creditors.22

It has been held that after the term, a decree taking a bill as confessed cannot be set aside on motion,23 unless the motion was made or noticed at the term when the decree was entered,24 even where there is a rule of the State court permitting such a practice.25 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.26 But a decree taking a bill

See White v. Crow, 110 U. S. 183, 28
L. ed. 113.

15 Massachusetts Ben. Life Ass'n v. Lohmiller, C. C. A., 74 Fed. 23. 16 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.

17 Freeman v. Warren, 3 Barb. Ch. (N. Y.) 635.

18 Wooster v. Woodhull, 1 J. Ch. (N. Y.) 529.

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

20 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.

21 Watt v. Watt, 2 Barb. Ch. (N. Y.) 371.

22 Blanchard v. Cooke, 144 Mass. 207.

23 Allen v. Wilson, 21 Fed. 881; Linder v. Lewis, 1 Fed. 378; Stuart v. St. Paul, 63 Fed. 644; Electric Vehicle Co. v. De Dietrich Import Co., 159 Fed. 492.

24 Stuart v. St. Paul, 63 Fed. 664. 25 Austin v. Riley, 55 Fed. 833.

26 Linder v. Lewis, 1 Fed. 378. See Stuart v. St. Paul, 63 Fed. 688.

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.27 And in a proper case such a decree can be set aside by an original bill.28

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.29 It has been held that there is an exception to this rule in the case of a bill to compel the issue of a patent, since the public are interested in the result, and that then the court may require a copy of the proceedings and testimony in the patentoffice and call for any other competent evidence that the complainant may have to offer.30 "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. "31"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."' 32

In the State courts a decree pro confesso is usually not taken against an infant without proof of the facts.33 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 34

The equity rules provide that,

27 Fellows v. Hall, 4 McLean, 281. 28 Thomson v. Wooster, 114 U. S. 104, 112, 29 L. ed. 105, 107; infra, §§ 450-452.

29 Bradley, J., in Thomson V. Wooster, 114 U. S. 104, 113, 29 L. ed. 105, 108; Andrews v. Cole, 20 Fed. 410; Rose v. Woodruff, 4 J. Ch. (N. Y.) 547, 548.

30 Davis v. Garrett, 152 Fed. 723, 725.

after an order taking the bill

32 Master Hoffman in Williams v. Corwin, Hopkins Ch. 471; quoted by Bradley, J., in Thomson V. Wooster, 114 U. S. 104, 110, 111, 29 L. ed. 105, 107. See Ohio Central R. Co. v. Central Tr. Co., 133 U. S. 83, 91, 33 L. ed. 561, 563.

33 Chaffin v. Kimball, 23 Ill. 36, 38; Ingersoll v. Ingersoll, 42 Mass. 155; Massie v. Donaldson, 8 Ohio, 377, 381. Cf. O'Hara v. MacConnell, 93 U. S. 151, 23 L. ed. 842.

34 Pendleton v. Evans, 4 Wash. 104, 112.

Fed. Prac. Vol. I-63

pro confesso for a default in pleading, "thereupon the same shall be proceeded in ex parte." 35 Whether this deprives the defendant of the right to notice of subsequent proceedings and to appear before the master is doubtful.36 It has been held that he has no right to a notice and hearing on the settlement of the final decree.37 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.38 The same rule prevailed in the Second,39 in the Third,40 and in the Ninth,41 Circuits. It has been held otherwise in the Eighth Circuit.42 A decree upon a bill taken as confessed is res adjudicata between the same parties and their privies in subsequent proceedings.43

Where a bill for the infringement of a patent alleges infringement of "the invention" 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.44

When more than one defendant is 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; 45 and if the bill is finally dismissed upon the merits as to them, it will be dismissed as to the defaulter also. 46 But the rule seems to be

35 Equity Rule 16. This phrase is not used in the Rules of 1822. 7 Wheat. vii, 5 L. ed. 376.

36 Bradley, J., in Thomson V. Wooster, 114 U. S. 104, 119, 120, 29 L. ed. 105, 110.

37 Provident Life & Trust Co. of Philadelphia v. Camden & T. Ry. Co., C. C. A., 177 Fed. 854 (Third Circuit).

38 Bennett v. Hoefner, 17 Blatchf. 341.

39 Davis v. Garrett, 152 Fed. 723. 40 Southern Pac. Co. v. Temple, 59 Fed. 17.

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, 29 L. ed. 105, 110.

43 Last Chance Min. Co. v. Tyler Min. Co., 157 U. S. 683, 39 L. ed. 859. Infra, § 186m.

44 Dobson v. Hartford Carpet Co., 114 U. S. 439, 446, 447, 29 L. ed. 177, 179, Reedy v. Western El. Co., C. C. A., 83 Fed. 709.

45 Frow v. De La Vega, 15 Wall. 552, 21 L. ed. 60.

46 Terry v. Fontaine's Adm'r, 83 Va. 451; Petty V. Hannum, 2 Humph. (Tenn.) 102, 36 Am. Dec.