Opinion
November 1804.
When a bill is taken pro confesso, the complainant is not bound to prove the contract stated in the bill. [Acc. Jackson v. Honeycut, ante, 30, and cases cited.]
It was moved by WHITESIDE and STEWART, for the plaintiff, that a decree should be passed agreeably to the prayer of the bill, and the facts stated.
Counsel for the defendant objected.
Equity. — The bill had been taken pro confesso, against the defendants.
The bill states a contract which ought to be proved so as to enable the plaintiff to obtain a decree. This case may properly be assimilated to a writ of inquiry at law, where it has always been conceived necessary to substantiate the demand by proof. In 1 2 Atk. it is laid down as law, that the rules of this court are the same as those of a court of law in this respect.
2 Com. Dig. 304.
1 Ver. 223, 247.
In courts of law we even find that it has been thought necessary, upon the execution of a writ of inquiry, that a note without seal should be proved. It appears clearly from Vernon that the practice in chancery was to require proof upon pro confesso. It is true Peere Williams lays down a different rule, but the ancient one is certainly much the most reasonable, compatible with the liberty of the citizen and principles of the common law.
But, in England, there was not so much reason for requiring proof as here. By the law of England a bill cannot be taken pro confesso, unless in two instances. 1st. Where the writ has been served, and the defendant fails to answer. 2d. Where a debtor, to avoid the demand of his creditor or process of law, absconds. In both instances there is great propriety and justice in considering the bill as true. In this country, our practice is entirely different. Here a bill can be taken pro confesso against a nonresident on whom no process has been served, and who perhaps never heard of an advertisement in a gazette citing him to appear. There are a variety of cases in the books which show that the courts considered it necessary to make proof so as to authorize a decree. 5 Com. Dig. 558; 9 Bart. 233-235; 5 Com. Dig. 562, shows what is necessary to be proved upon a writ of inquiry at law. 2 Ver. 696; 2 Ver. 308, 389, 404, 540; 2 Com. Dig. 311, 312, 308; 2 Vent. 161, exhibit a cursory view of the practice in chancery in this respect.
It was further insisted that the Act of 1782, c. 11, contemplates in every instance the service of process. The Act 1787, c. 22, the first act which authorizes a decree against a non-resident — but this, as in England, was predicated upon an idea of the defendant's absconding; these acts embrace the two principles which have obtained in England. The 2d and 15th sections of the Acts of 1801, c. 6, convey the meaning of the legislature, in this respect, and show that proof is necessary upon an ex parte hearing.
WHITESIDE and STEWART, e contra, relied upon 2 Peere Williams, 556, and 2 Eq. Cas. 179.
The case in 2 P. W. 556 clearly shows what is the practice in England. It is the most modern authority. The law as laid down in that case shows that when a bill is taken pro confesso no proof is necessary, the bill being taken as true by the Court. Our statutes have adopted the phraseology of the English law, it ought therefore to have the same import here as there. A defendant, by suffering judgment by default at law, admits something to be due. If the action be founded on a specialty, bill, or note it may be necessary to produce them at the trial, but no other proof is necessary.
Contra, 4 Hen. Mun. 476.
See 3 Johns. 58, 65; Hard; 45.
Selwyn's N. P. 388.
Where damages are uncertain, it becomes absolutely necessary, that a jury should intervene, to say what has been sustained, otherwise it cannot appear to the Court.
The Act of 1801 does not apply to this case, because the order was made before the passage of the act. The act may prescribe a different rule in future, but it cannot affect that which was past.
No proof seems necessary, and let the cause be heard accordingly.