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NEALE v. HAGTHROP. 575
may be entered on the default, and a commission issued ex parte.
But, in every case, the consequence of the default is, that the bill
may be taken pro confesso, (q)
Hence, it appears to be clear, that these legislative rules which,
according to their letter, are only applicable to a case where there
is no answer at all; must, in spirit and in principle, be alike appli-
cable to the case where the answer only covers a part of the mate-
rial allegations, and is totally and absolutely silent as to the residue
of the bill. And, that the unanswered part of the bill must, on
the hearing, be taken to be true; otherwise, there would be a
manifest inconsistency in the course of the court. But, the rea-
son and principle being the same, the rule must be the same in
both cases, if the whole bill be left unanswered it may be taken
for true; or if a part only be left unanswered, that part must, in
like manner, be taken for true.
These acts of Assembly allowing a bill to be taken pro confesso
on the defendant's default in not answering, authorize the Chan-
cellor to pass a final decree at once, if he deems it unnecessary to
issue a commission. The decree by default, in all such cases, is
as absolute as a judgment by default in an action at common law,
The course of the English Court of Chancery is, in some
respects, different. There when the plaintiff obtains a decree by
default, a provisional clause is superadded, that such a decree is to
be binding on the defendant, unless, being served with process, he
shall, within a limited time, shew cause to the contrary. And this
decree being sub modo only, is emphatically called a decree nisi;
which cannot be, nor ever is considered as final until the party
has been served with process, and it has been made absolute by the
court itself, (r)
This, it seems, has long been the established practice of the
Courts of Chancery of Virginia. So, that where a defendant has
not answered the bill, it is held to be error to enter a final decree
against him, taking the bill pro confesso, without the previous ser-
vice of a decree nisi, (s) And it has also been held, in that state,
that where some of the allegations of the bill were not answered,
the plaintiff might except to the answer as insufficient, or move to
have the unanswered part of the bill taken for confessed. But, if
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(q) 1795, ch, 88, s. 1. —(r) I Harri. Pra. Chan. 625; Beam's Orders, 198; Hal-
gey v. Smyth, Mosely, 186; Venemore v. Venemore, 1 Dick, 93. —(s) Thompson v.
Strode, 2 Hen. & Munf. 19; Legrand v. Francisco, 3 Mun. 83.
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