Under the former practice, where the bill when the subpoena was served did not show jurisdiction against a defendant, a subsequent amendment stating facts sufficient to show jurisdic tion against it would not warrant the entry of an order taking the bill as confessed without a second service of the subpœna, or an appearance by such defendant. The same practice seems to have been observed when the bill was amended so as to state a new case or to bring in new parties. As to the rule when trivial amendments are added to the bill, the practice in the United States is not settled.7 Where an amended bill filed without leave after a default in defendant's appearance was withdrawn without the payment of costs or furnishing a copy to him, it was held that the right to have the original bill taken as confessed had not been waived. the bill might be taken as confessed. had repeatedly failed to answer an the bill which the same affected were ordered taken as confessed.10 So where exceptions to an answer for insufficiency had been sustained, the complainant might, if he chose, enter an order taking as confessed the parts of the bill to which the exceptions related.11 It seems, that, in the absence of a rule upon the subject, the complainant in such a case might, at his election, have either the whole bill or the parts insufficiently answered sustained, the defendant might, if he chose, enter an order taking as confessed the parts of the bill to which the exceptions related. It seems that, in the absence of a rule upon the subject, the complainant in such a case might, at his election, have either the whole bill or the parts insufficiently answered taken as confessed. 5 Cuebas v. Cuebas, 223 U. S. 376; Non-Magnetic Watch Co. v. Asso. H. of Geneva, 45 Fed. 210. But see Brown v. Lake Sup. Iron Co., 134 U. S. 530, 33 L. ed. 1021; Nelson v. Eaton, 66 Fed. 376. 6 Nelson v. Eaton, 66 Fed. 376; Bank of Utica v. Finch, 1 Barb. Ch. (N. Y.) 75; Weightman v. In a proper case, part of Thus, where the defendant interrogatory, the parts of Powell, 2 De G. & S. 570; Beecher v. Ireland, 46 Kan. 97. 7 The English rule was that a new subpœna must be served. Weightman v. Powell, 2 De G. & S. 570. See also Blythe v. Hinckley, 84 Fed. 228; Harris v. Deitrich, 29 Mich. 366. Contra, Bond v. Howell, 11 Paige (N. Y.), 233. 8 Sheffield Furnace Co. v. Witherow, 149 U. S. 574, 576, 37 L. ed. 853, 855. 9 Suydam v. Beals, 4 McLean, 12; Hale v. Cont. L. Ins. Co., 20 Fed. 344. 10 Hale v. Cont. L. Ins. Co., 20 Fed. 344. 11 Eq. Rule 64 of 1842; infra, § 194. 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.3 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 III. 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 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. 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. 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.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 15 Massachusetts Ben. Life Ass'n 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, after an order taking the bill 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. 31 Bradley, J., in Thomson V. Wooster, 114 U. S. 104, 113, 114, 29 L. ed. 105, 108. Fed. Prac. Vol. I-63 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. |