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572 NEALE v. HAGTHROP.
ration; in which case, the plaintiff may join issue on the plea and
take judgment for the unanswered part as by nil dicit. And, we
are told, that it is frequently judicious to plead only to part, or to
admit a part of the cause of action, in order to save the costs of
the trial of such matter; for, nothing can be tried that is not put
in issue, and the defendant by declining to answer a part deprives
the plaintiff of the power to burthen him with the costs and ex-
pense of proving that on a trial which he has not denied and put
in issue. (A) So in equity, where the defendant fails, or declines
answering any material part of the plaintiff's bill, as to which he
seeks and may obtain relief, it amounts to a tacit admission of so
much; and such part of the bill may, therefore, be taken pro con-
fesso. If the declining to answer a part of the cause of action
may, from any motives, be judicious at common law, certainly a
defendant in Chancery may be induced, for like reasons, to pursue
a similar course; since no costs or expense can be allowed in
Chancery any more than at law for the proof and trial of any mat-
ter not put in issue, (i)
Upon the whole this rule, in relation to pleadings in equity, ap-
pears to be as fully sustained by analogy to the course of the com-
mon law as by direct and positive authority.
There is, in many instances, a strong disposition manifested by
courts of Chancery, to harmonize their course of proceedings in
principle with the positive rules of the common law. But when
the Legislature has prescribed rules of proceeding for the court
itself; and cases occur, within the spirit, but not within the letter
of them, the Chancellor feels himself, not merely invited, for the
preservation of harmony, but becomes sensible of a duty to con-
form; upon the ground, that equity is bound to follow the law in
spirit and in principle,
In equity, the consequences of a default before appearance, when
pursued to the utmost, seldom enabled the plaintiff to obtain the
precise relief he was in quest of; because, there could be no
adjudication upon his case, applying the remedy, as specific per-
formance, or the like, exactly to suit it, until the defendant had
appeared, and the allegations of the bill had been taken for true or
established.
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{k) 1 Chitty Plea. 509. —(i) Matthew v. Hanbury, 2 Tern. 188; Watkyns v.
Watkyns, 2 Atk. 96; Clarke v. Periam, 2 Atk, 333, 837; S. C. 9 Mod. 340; Haw-
kins v. Crook, 2 P. Will. 556; Ward 9. Buckingham, 3 Bro. P. C. 581; Clarke v.
Turton, 11 Ves. 240; Smith v, Clarke, 12 Ves. 477; Gordon v. Gordon, 3 Swan.
472; Blake v. Marnell, 2 Ball & B. 47.
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