objection to the irregularity of service, and his proceeding is equivalent to a general appearance.18 After a special appearance for the purpose of objecting to the jurisdiction has been made, and the objection overruled, the right to insist upon this objection on an appeal is not lost by a subsequent appearance and defense to the suit upon the merits.19

A general appearance does not waive an objection to the jurisdiction of the court upon the ground of a lack of the requisite difference of citizenship; 20 nor admit the validity of a writ of foreign attachment previously issued,21 nor, it has been held, authorize an amendment of the plaintiff's pleading so as to set forth a new cause of action, upon which the defendant could not originally have been sued in the jurisdiction.22 It is not a waiver of the right of removal.23

The court has power to allow a general appearance to be changed by amendment to a special appearance,24 or to be withdrawn.25 This has been permitted when the original complaint has misstated the plaintiff's residence and that subsequently appears to be such as to defeat the jurisdiction; 26 and where a general appearance was made, after the service of a summons,

18 Fitzgerald & M. C. Co. v. Fitzgerald, 137 U. S. 98, 34 L. ed. 608; Jones v. Andrews, 10 Wall. 327, 19 L. ed. 935; St. Louis & S. F. Ry. Co. v. McBride, 141 U. S. 127, 132, 35 L. ed. 659, 661; Edgell v. Felder, C. C. A., 84 Fed. 69. But see U. S. v. Am. Bell Tel. Co., 29 Fed. 17; McGillin v. Claflin, 52 Fed. 657. But see Kelley v. T. L. Smith Co., C. C. A., 196 Fed. 466; see § 169,

supra.

19 Harkness v. Hyde, 98 U. S. 476, 25 L. ed. 237, Mexican C. Ry. Co. v. Pinckney, 149 U. S. 194, 37 L. ed. 699. See § 169, supra.

20 Mansfield, C. & L. M. Ry. Co. v. Swan, 111 U. S. 379; Martin v. Baltimore & O. Ry. Co., 151 U. S. 673, 689, 14 Sup. Ct. 533, 38 L. ed. 311; Chicago, B. & O. Ry. Co. v. Willard, 220 U. S. 413, 420, 421, 31 Sup. Ct. 460, 55 L. ed. 521; Ro

maine v. Union Ins. Co., 28 Fed. 625.

21 Sackett v. Rumbaugh, 45 Fed. 23; U. S. Envelope Co. v. Franco Paper Co., 229 Fed. 576.

22 Western Wheeled Scraper Co. v. Gahagan, 152 Fed. 648. See Toledo Railways & Light Co. v. Hill, 244 U. S. 48.

23 Judson v. Knights of the Maccabees of the World, 220 Fed. 1004. 24 U. S. v. Yates, 6 How. 605, 12 L. ed. 575; Hohorst v. Hamburg Am. P. Co., 38 Fed. 273.

25 Rhode Island v. Massachusetts, 13 Pet. 23, 10 L. ed. 41; First Nat. Bank v. Cunningham, 48 Fed. 510; Chicago Title & Trust Co. v. Newman, C. C. A., 187 Fed. 573, 577.

26 Hagstoz v. Mutual Life Ins. Co. of New York, 179 Fed. 569. See Leonard v. Merchants' Coal Co., C. C. A., 162 Fed. 885.

but before a pleading was filed or served, and the defendant did not then know that the sole ground of jurisdiction was a diversity of citizenship; 27 but not ordinarily where, before appearing, a defendant had notice of the facts upon which he relies or reasonable opportunity to ascertain them and his employment in the case was not limited by his client.28 Permission to withdraw a general appearance, if conditioned that it is granted without prejudice to the plaintiff, does not deprive the latter of rights founded upon a rule that a general appearance is a waiver of a defect in the service of process.29 Otherwise it does.30

27 Crown Cotton Mills v. Turner (S. D. N. Y.), 82 Fed. 337.

28 Lamborn v. Louisiana Sugar Co., Mack, J., N. Y. L. J., Dec. 2,

1912.

29 Graham v. Spencer, 14 Fed. 603. 30 Graham v. Spencer, 14 Fed. 603, 607; First Nat. Bank of Denver v. Cunningham, 48 Fed. 510, 517.

CHAPTER VIII.

TAKING BILLS PRO CONFESSO.

§ 171. When a bill may be taken pro confesso. "It shall be the duty of the defendant, unless the time shall be enlarged, for cause shown, by a judge of the court, to file his answer or other defense to the bill in the clerk's office within the time named in the subpoena as required by rule 12. In default thereof the plaintiff may, at his election, take an order as of course that the bill be taken pro confesso; and thereupon the cause shall be proceeded in ex parte."1

$171. 1 Eq. Rule 16. By the early practice of the civil law failure to appear on the day to which the cause was adjourned, was deemed to be a confession of the action; but later this rule was changed, so that the plaintiff, notwithstanding the defendant's contumacy only obtained judgment in accordance with the truth of the case as established by an ex parte examination. Keller Proced. Rom. § 69. The original Chancery practice was in accordance with the later Roman law. Hawkins v. Crook, 2 Peere Williams, 556. But at least as early as the Seventeenth Century, bills were taken pro confesso for contumacy. Ibid. This, however, was not done until after an attachment to compel an answer, an attachment with proclamations, a com mission of rebellion, and sequestration. Forum Romanum, 36; Boudinot v. Symmes, Wallace, C. C. 139, Fed. Cas. No. 1,695. In Thomson

v. Worcester, 114 U. S. 104, 119, 29 L. ed. 105, 110. See the report of Master Hoffman to Chancellor Sanford in Williams v. Corwin, Hopkins, Ch. 471. The English Chancery practice prevailed in the courts of the United States as late as 1801. Boudinot v. Symmes, Wallace, C. C. 139, Fed. Cas. No. 1,695. A decree taking a bill in equity pro confesso presents striking analogies to a judgment by nil dicit, and to judgment for plaintiff on demurrer to the defendant's plea. Davis v. Davis, 2 Atk. 21; Hawkins v. Crook, 2 Peere Williams, 556, quoted in 2 Eq. Cas. Ab. R., 179.

Eq. Rule 12 of 1842 provided: "The defendant is to enter his appearance in the suit in the clerk's office on or before the day at which the writ is returnable; otherwise, the bill may be taken pro confesso.' According to Eq. Rule 18 of 1842, the defendant was allowed until the rule day next succeeding that of 987

"If the defendant move to dismiss the bill or any part thereof, the motion may be set down for hearing by either party upon five days' notice, and, if it be denied, answer shall be filed within five days thereafter or a decree pro confesso entered." 2

"If the answer include a set-off or counter-claim, the party against whom it is asserted shall reply within ten days after the filing of the answer, unless a longer time be allowed by the court or judge. If the counter-claim is one which affects the rights of other defendants they or their solicitors shall be served with a copy of the same within ten days from the filing thereof, and ten days shall be accorded to such defendants for filing a reply. In default of a reply, a decree pro confesso on the counter-claim may be entered as in default of an answer to the bill." "In every case where an amendment to the bill shall be made after answer filed, the defendant shall put in a new or supplemental answer within ten days after that on which the amendment or amended bill is filed, unless the time is enlarged or it is otherwise ordered by a judge of the court; and upon a default, the like proceedings may be had as upon an omission to put in an answer.

14

entering his appearance before he was required to file his plea, demurrer, or answer to the bill. "In default thereof, the plaintiff may, at his election, enter an order (as of course) in the order-book, that the bill be taken pro confesso; and thereupon the cause shall be proceeded in ex parte, and the matter of the bill may be decreed by the court at any time after the expiration of thirty days from and after the entry of said order, if the same can be done without an answer, and is proper to be decreed; or the plaintiff, if he requires any discovery or answer to enable him to obtain a proper decree, shall be entitled to process of attachment against the defendant to compel an answer, and the defendant shall not, when arrested upon such process, be discharged therefrom, unless upon fil

ing his answer, or otherwise complying with such order as the court or a judge thereof may direct, as to pleading to or fully answering the bill, within a period to be fixed by the court or judge, and undertaking to speed the cause.

2 Eq. Rule 29.
3 Rule 31.

4 Rule 32. Under the Equity Rules of 1842, in a proper case part of the bill might be taken as confessed. Suydam v. Beals, 4 McLean 12; Hale v. Continental Life Ins. Co., 20 Fed. 344. Thus, where the defendant had repeatedly failed to answer an interrogatory, the parts of the bill which the same affected were ordered taken as confessed. Hale v. Continental Life Ins. Co., 20 Fed. 344. Eq. Rule 64 of 1842 provided: that where exceptions to an answer for insufficiency had been

Under the former practice, where the bill when the subpoena was served did not show jurisdiction against a defendant, a subsequent amendment stating facts sufficient to show jurisdiction against it would not warrant the entry of an order taking the bill as confessed without a second service of the subpœna, or an appearance by such defendant. The same practice seems to have been observed when the bill was amended so as to state a new case or to bring in new parties. As to the rule when trivial amendments are added to the bill, the practice in the United States is not settled." Where an amended bill filed without leave after a default in defendant's appearance was withdrawn without the payment of costs or furnishing a copy to him, it was held that the right to have the original bill taken as confessed had not been waived. the bill might be taken as confessed. had repeatedly failed to answer an the bill which the same affected were ordered taken as confessed.10 So where exceptions to an answer for insufficiency had been sustained, the complainant might, if he chose, enter an order taking as confessed the parts of the bill to which the exceptions related. It seems, that, in the absence of a rule upon the subject, the complainant in such a case might, at his election, have either the whole bill or the parts insufficiently answered

It

sustained, the defendant might, if he chose, enter an order taking as confessed the parts of the bill to which the exceptions related. seems that, in the absence of a rule upon the subject, the complainant in such a case might, at his election, have either the whole bill or the parts insufficiently answered taken as confessed.

5 Cuebas v. Cuebas, 223 U. S. 376; Non-Magnetic Watch Co. v. Asso. H. of Geneva, 45 Fed. 210. But see Brown v. Lake Sup. Iron Co., 134 U. S. 530, 33 L. ed. 1021; Nelson v. Eaton, 66 Fed. 376.

6 Nelson v. Eaton, 66 Fed. 376; Bank of Utica v. Finch, 1 Barb. Ch. (N. Y.) 75; Weightman v.

In a proper case, part of Thus, where the defendant interrogatory, the parts of

Powell, 2 De G. & S. 570; Beecher v. Ireland, 46 Kan. 97.

7 The English rule was that a new subpœna must be served. Weightman v. Powell, 2 De G. & S. 570. See also Blythe v. Hinckley, 84 Fed. 228; Harris v. Deitrich, 29 Mich. 366. Contra, Bond v. Howell, 11 Paige (N. Y.), 233.

8 Sheffield Furnace Co. v. Witherow, 149 U. S. 574, 576, 37 L. ed. 853, 855.

9 Suydam v. Beals, 4 McLean, 12; Hale v. Cont. L. Ins. Co., 20 Fed. 344.

10 Hale v. Cont. L. Ins. Co., 20 Fed. 344.

11 Eq. Rule 64 of 1842; infra, § 194.