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576 NEALE v. HAGTHROP.
he does neither, it must be proved, and he shall not, on the trial,
avail himself of any implied admission by the defendant; for
where the defendant does not answer at all, the plaintiff cannot
take his bill for confessed, without an order of court to that effect,
and ha?ing it served on the defendant; and this is the only evi-
dence of his admission. Of course, if this mode of proceeding,
as to the confession of the whole bill, be correct, it must be equally
correct as to any part, (t)
Such is the rule as to the Chancery Courts of England and Vir-
ginia. The default in not making any answer at all, and that of
not answering all the allegations of the bill are precisely alike in
kind, differing only in degree; hence the courts of England, and
of that state have applied the same rule, in spirit and principle, to
both defaults. The party is allowed to pursue the same course to
have his bill, either wholly or partially taken pro confesso, according
to the extent of the defendant's default.
In this state, no decree nisi is ever entered and served on a de-
fendant who has not answered; but an absolute decree may be
entered at once, so soon as he can be fixed with the default; which
can be at any time after the limited period for answering has
elapsed, or when he has elected to make and has actually filed his
answers to the bill. The principle and reason of the English and
Virginia rule, and that of Maryland, are the same in relation to a
partial answer. The courts in each following the spirit of the
established or legislative rule, which directs the mode of proceed-
ing in case the defendant puts in no answer at all.
The plaintiff is entitled to an answer to each allegation of his
bill, either because he cannot prove the facts, or to aid his proof,
or to avoid expense. If the answer be insufficient he may ex-
cept to it; which has been compared to a demurrer at law for
want of form. The sole object of exceptions is to extract from
the defendant a more full and perfect disclosure for the benefit of
the plaintiff. They ate never meant, nor intended, nor are they
calculated to benefit the defendant, or to put him upon his guard
in any respect whatever. The plaintiff may waive his right to
except; and it is always advisable to do so, where his proofs are
ample and at hand; and the character or conduct of the defendant
(I) Jopling 9. Stuart, 4 Ves, 619; Dangerfield v. Claiborne, 2 Hen. & Mun. 17;
Thompson v. Strode, 2 Hen. & Mun. 19; Coleman v. Lyne, 4 Rand, 456; Young v.
Grundy, 6 Cran. 51.
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