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W4 NEALE v. HAGTHR0P.
also the bill in taken pro confesso; because it is presumed to be
true when he has appeared and departed in despite of the court,
and withstands all its process without answering, (n) But these
modes of having a bill taken pro confesso having been deemed, in
many respects, too oppressive, or unnecessarily tedious, more easy
and expeditious modes have been provided, by which, if a defen-
dant, who has appeared, fails to demur, plead or answer, according
to the rules of the court, within a limited time, the bill may be
taken pro confesso, (o)
At law, where the nature and amount of the plaintiff's demand
may be distinctly ascertained from the declaration, as in debt,
assumpsit, upon a promissory note, or the like, the judgment by nil
dicit is final; but in actions for the recovery of damages only it is
not so; because the amount claimed is uncertain; and, therefore,
an enquiry must be made and proof heard as to the quantum which
the plaintiff is entitled to recover. Hence it is, that several of our
acts of Assembly, which allow the bill to be taken pro confesso,
go on to declare, that the Chancellor may, in his discretion, order
a commission to issue for the plaintiff to examine witnesses to
prove the allegations of his bill; or that the plaintiff may himself
be examined on oath; which acts of Assembly, apparently in
affirmance of a former course of proceeding, have enabled the
Chancellor to call for proofs and explanations in all cases which
appear to require it. (p)
These, then, are the legislative rules, in regard to the whole
bill where no answer at all is put in. But not one of these acts of
Assembly, which seem to have provided, with such an infinite deal
of care and solicitude, for all the various causes and modes of ne-
glecting or failing to answer the whole bill, do in any manner
speak of or allude to the case of a neglect or refusal to answer a
distinct and material part only of the whole bill, where an answer
is made to all the rest. It has been declared, that a bill may be
taken pro confesso, and the Chancellor shall proceed to decree in
the same manner as if the defendant had admitted by his answer
the facts stated in the bill. And in case the defendant has been
summoned, or has appeared, and fails to answer, he must be
ordered to do so by an appointed day, or an interlocutory decree
(n) Forum Rom. 86, —(o) 1785, ch. 72, s. 20; 1799, ch. 79, s. 2 and 9; 1820, ch.
101, s. 1; Buckingham v. Peddicord, 2 Bland, 447. —(p) 1799, ch. 79, s. 5; 1818,
ch. 193, s. 5; Johnson v. Desmineere, 1 Vern. 223; Hawkins v. Crook, 2 P, Will.
556.
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