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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.48

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.

41 Austin v. Riley, 55 Fed. 833. 42 Heyn v. Heyn, Jacob, 49. So in the New York Chancery, 1

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.

otherwise where his liability is distinct and several.47 Where a decree pro confesso had been entered, adjudicating that one of the defendants had no right to the fund mentioned in the bill, it was held to be error for a final decree, after a hearing on issues raised by other defendants, to give to the defaulter an interest in the fund.48

It seems that a decree taking a bill as confessed is of no effect unless followed by, or included in, a final decree.49 An appeal can be taken from the decree, after a bill has been taken as confessed. Upon such an appeal the decree may be reversed for a defect in the service of the subpoena; 50 for failure to appoint a guardian ad litem, when required; 51 it seems for a want of indispensable parties,52 and for a failure to set aside the decree upon a proper application.53 The only question for the consideration of the court is whether the allegations in the bill are sufficient to support the decree.54 It seems that the objection that the complainant had an adequate remedy at law rests in the discretion of the court of first instance, and that it cannot be waived in the appellate court by a defendant who is in default.55 Where the defendant had not moved until nine months after the appointment of a receiver, and meanwhile the bill had been taken as confessed, it was held to be too late to take this objection.56

303; Butler v. Kenzie, 90 Tenn. 31; s. c., 15 S. W. 1068; Clason v. Morris, 10 Johns. (N. Y.) 524; Kooper v. Dyer, 59 Vt. 477, 59 Am. Rep. 742. 47 Andrew v. Lee, 1 Dev. & B. Eq. (N. C.) 318; Simpson v. Moore, 5 Lea. (Tenn.) 376.

48 Third Nat. Bank of Atlantic City, C. C. A., 130 Fed. 751.

49 Frow v. De La Vega, 15 Wall. 552, 51 L. ed. 60; Butterworth v. Hill, 114 U. S. 128, 29 L. ed. 119.

50 O'Hara v. MacConnell, 93 U. S. 150, 23 L. ed. 840; Butterworth v. Hill, 114 U. S. 128, 29 L. ed. 119. 51 O'Hara v. MacConnell, 93 U. S. 150, 23 L. ed. 840.

52 Ibid.

53 American F. L. M. Co. v. Thomas, C. C. A., 71 Fed. 782; Nelson v. Eaton, C. C. A., 66 Fed. 376.

54 Masterson v. Howard, 18 Wall. 99, 21 L. ed. 764; Ohio C. R. Co. v. Central Tr. Co., 133 U. S. 83, 33 L. ed. 561.

55 Brown v. Lake Superior Iron Co., 134 U. S. 530, 33 L. ed. 1021; Western Elec. Co. v. Reedy, 66 Fed. 163.

56 Brown v. Lake Superior Iron Co., 134 U. S. 530, 33 L. ed. 1021; Anderson v. Hultberg, C. C. A., 247 Fed. 273; Miller v. Belvy Oil Co., C. C. A., 248 Fed. 83; Venner v. Pennsylvania Steel Co., 250 Fed. 292; United States Oil & Land Co. v. Bell, 219 Fed. 785; Rowe v. Hill, C. C. A., 215 Fed. 518. When a deed was delivered but not recorded before the suit, the grantee is not bound by the decree.

CHAPTER IX.

ANSWERS.

§ 173. Answers in general. "It shall be the duty of the defendant, unless the time shall be enlarged, for cause shown, by a judge of the court, to file his answer or other defense to the bill in the clerk's office within the time named in the subpœna as required by rule 12. In default thereof the plaintiff may, at his election, take an order as of course that the bill be taken pro confesso; and thereupon the cause shall be proceeded in ex parte."

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"Demurrers and pleas are abolished. Every defense in point of law arising upon the face of the bill, whether for misjoinder, nonjoinder, or insufficiency of fact to constitute a valid cause of action in equity, which might heretofore have been made by demurrer or plea, shall be made by motion to dismiss or in the answer; and every such point of law going to the whole or a material part of the cause or causes of action stated in the bill may be called up and disposed of before final hearing at the discretion of the court. Every defense heretofore presentable by plea in bar or abatement shall be made in the answer and may be separately heard and disposed of before the trial of the principal case in the discretion of the court. If the defendant move to dismiss the bill or any part thereof, the motion may be set down for hearing by either party upon five days' notice, and, if it be denied, answer shall be filed within five days thereafter or a decree pro confesso entered." 2

"The defendant in his answer shall in short and simple terms set out his defense to each claim asserted by the bill, omitting any mere statement of evidence and avoiding any general denial of the averments of the bill, but specifically admitting or denying or explaining the facts upon which the plaintiff relies, unless the defendant is without knowledge, in which case he shall so $173. 1 Eq. Rule 16. 2 Eq. Rule 29.

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state, such statement operating as a denial. Averments other than of value or amount of damage, if not denied, shall be deemed confessed, except as against an infant, lunatic, or other person non compos and not under guardianship, but the answer may be amended, by leave of the court or judge, upon reasonable notice, so as to put any averment in issue, when justice requires it. The answer may state as many defenses, in the alternative, regardless of consistency, as the defendant deems essential to his defense. The answer must state in short and simple form any counter-claim arising out of the transaction which is the subject-matter of the suit, and may, without cross-bill, set out any set-off or counter-claim against the plaintiff which might be the subject of an independent suit in equity against him, and such set-off or counter-claim, so set up, shall have the same effect as a cross-suit, so as to enable the court to pronounce a final judgment in the same suit both on the original and crossclaims." 3

"If the counter-claim is one which affects the rights of other defendants they or their solicitors shall be served with a copy of the same within ten days from the filing thereof."

An answer in equity serves two purposes: the setting up of the defenses to the suit and discovery. It may now pray relief against the complainant and against a co-defendant. Formerly this could not ordinarily be done without the filing of a crossbill.7

§ 174. Admissions and denials and discovery. The Equity Rules now provide that the answer must specifically admit, deny, or explain the facts upon which the plaintiff relies, unless the. defendant is without knowledge, in which case he shall so state, such statement operating as a denial.1

The rules are silent as to whether an answer under oath to the bill is required, although they make a provision for answers under oath to interrogatories filed after issue is joined. They are also silent as to whether the complainant may waive an

3 Eq. Rule 30; Coalston v. H. Franke Steel Range Co., 221 Fed. 671.

4 Eq. Rule 31. 5 Eq. Rule 30. 6 Eq. Rule 31,

7 Carnochan v. Christie, 11 Wheat. 446, 6 L. ed. 516; Veach v. Rice, 131 I. S. 293, 33 L. ed. 163. Infra, § 197.

$174. 1 Eq. Rule 30.
2 Eq. Rule 58,

answer under oath and as to the effect of an answer under oath as evidence.

The Equity Rules of 1842, which seem in this respect to follow the former practice in chancery, provided: "If the complainant, in his bill, shall waive an answer under oath, or shall only require an answer under oath with regard to certain specified interrogatories, the answer of the defendant, though not under oath, shall not be evidence in his favor, unless the cause be set down for hearing on bill and answer only; but may nevertheless be used as an affidavit with the same effect as heretofore upon a motion to grant or dissolve an injunction, or on any other incidental motion in the cause; but this shall not prevent a defendant from becoming a witness in his own behalf under section 3 of the act of Congress of July 2, 1864." Consequently, under those rules, an answer under oath was usually waived by the complainant. It was held that, where an answer under oath was waived, a discovery could not be required, and that defendant

8 See Daniell's Ch. Pr., First Am. Ed., 846; Curling v. Townshend, 19 Vesey 628, 629; Billingslea v. Gilbert, 1 Bland (Md.) 567; Contee v. Dawson, 2 Bland (Md.) 264; Fulton Bank v. Beach, 2 Paige, (N. Y.) 307; Story's Eq. Pl., §§ 874, 875a.

4 Eq. Rule 41 of 1842 as amended December, 1871. The statute cited is now U. S. R. S., § 858. See Woodruff v. Dubuque & S. C. R. Co., 30 Fed. 91.

5 See Slessinger v. Buckingham, 17 Fed. 454, 456.

6 Tillinghast v. Chace, 121 Fed. 435; McFarland v. State Sav. Bank, 132 Fed. 399; Victor G. Bloede Co. of Baltimore City v. Carter, 148 Fed. 127; Gorham Mfg. Co. v. Weintraub, 180 Fed. 639. See also Harrington v. Harrington, 15 R. I. 341, 5 Atl. 502; McCulla v. Beadleston, 17 R. I. 20, 26, 20 Atl. 11; Starkweather v. Williams, 21 R. I. 55, 41 Atl. 1003; Ward v. Peck, 114 Mass. 121; Badger v. McNamara, 123

Mass. 117, 120; McCormick v. Chamberlain, 11 Paige (N. Y.) 543; U. S. v. McLaughlin (C. C.) 24 Fed. 823; Sheppard v. Akers, 1 Tenn. Ch. 326; Goodwin v. Bishop, 145 Ill. 421, 34 N. E. 47; Field v. Hastings & Bradley Co., 65 Fed. 279; Story's Eq. Pldg. 875; Daniell's Ch. Pr. (3d. Am. ed.) 799. But see Johnston v. Forsyth Merc. Co., 127 Fed. 845, 848; John Church Co. v. Zimmerman, 131 Fed. 652. Contra, Bates on Equity Federal Procedure, Vol. I, §355; criticised by Brewer, J., in Tillinghast v. Chace, 121 Fed. 435, 436. Citing Kittredge v. Claremont Bank, 1 Woodb. & M. 244, Fed. Cas. No. 7,859; Whittemore v. Patten, 81 Fed. 527; Nat'l Hollow Brake Beam Co. v. Interchangeable Brake Beam Co., 83 Fed. 26; Uhlmann v. Arnhold & Schaeffer Brewing Co., 41 Fed. 369; Gamewell Fire-Alarm Tel. Co. v. Mayor (C. C.), 31 Fed. 312; Colgate v. Compagnie Francaise, 23 Fed. 82; Reed. v. Cumberland Mut. Ins. Co., 36 N. J. Eq. 393; Manley

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