Under the rules and practice of this Court in equity, a decree
pro confesso is not a decree as of course according to the
prayer of the bill, nor as the complainant chooses to make it, but
it should be made by the court according to what is proper to be
decreed upon the statements of the bill, assumed to be true.
The difference between former rules in equity and those now in
force pointed out.
Whether, after a bill is taken
pro confesso, the
defendant is entitled to an order permitting him to appear before
the master is not now decided.
After entry of a decree
pro confesso, and while it
stands unrevoked, the defendant cannot set up anything in
opposition to it, either below or in this Court on appeal, except
what appears on the face of the bill.
In a suit in equity to restrain the infringement of a patent and
for an account, the defendant cannot question the validity of the
patent after a decree
pro confesso establishing its
validity.
A delay in applying for the reissue of a patent which appears on
the face of the proceedings, and which, unexplained, might be
regarded as unreasonable, cannot be set up against the patent by a
defendant after a decree
pro confesso has been taken in a
suit in equity which is founded on and sets up the patent and seeks
to restrain him from infringing it.
It is irregular to introduce, pending an appeal, an original
patent not introduced below.
Affidavits before a master or the court below as grounds of
application to reopen proofs form no part of the evidence before
the Court on appeal.
In proceedings before a master after the bill in a suit to
restrain infringement of a patent has been taken
pro
confesso, it is not proper to inquire into the cost of
producing a result by other processes or machines; the proper
inquiry relates to the profits enjoyed by defendants by reason of
using the patented invention.
The appellee in this case, who was complainant below, filed his
bill against the appellants complaining that they infringed certain
letters patent for an improved folding guide for sewing machines
granted to one Alexander Douglass, of which the complainant was the
assignee. The patent was dated October 5, 1858, was extended for
seven years in 1872, and was reissued
Page 114 U. S. 105
in December, 1872. The suit was brought on the reissued patent,
a copy of which was annexed to the bill, which contained
allegations that the invention patented had gone into extensive use
not only on the part of the complainant, but by his licensees, and
that many suits had been brought and sustained against infringers.
The bill further alleged that the defendants, from the time when
the patent was reissued down to the commencement of the suit,
wrongfully and without license, made, sold, and used, or caused to
be made, sole, and used, on or more folding guides, each and all
containing the said improvement secured to the complainant by the
said reissued letters be made, sold, and used, one or more folding
guides, great gain and profits from such use, but to what amount
the complainant was ignorant, and prayed a disclosure thereof, and
an account of profits, and damages, and a perpetual injunction.
The bill of complaint was accompanied with affidavits verifying
the principal facts and certain decrees or judgments obtained on
the patent against other parties, and Douglass' original
application for the patent, made in April, 1856, a copy of which
was annexed to the affidavits. These affidavits and documents were
exhibited for the purpose of obtaining a preliminary injunction,
which was granted on notice.
The defendants appeared to the suit by their solicitor May 3,
1879, but neglected to file any answer or to make any defense to
the bill, and a rule that the bill be taken
pro confesso
was entered in regular course June 10, 1879. Thereupon, on the
second of August, 1879, after due notice and hearing, the court
made a decree to the following effect,
viz., 1st, that the
letters patent sued on were good and valid in law; 2d, that
Douglass was the first and original inventor of the invention
described and claimed therein; 3d., that the defendants had
infringed the same by making, using, and vending to others to be
used, without right or license, certain folding guides
substantially as described in said letters patent; 4th, that the
complainant recover of the defendants the profits which they had
derived by reason of such infringement by any manufacture, use, or
sale, and any and all damages which the complainant had sustained
thereby, and it was referred to a master to take
Page 114 U. S. 106
and state an account of said profits, and to assess said
damages, with directions to the defendants to produce their books
and papers and submit to an oral examination if required. It was
also decreed that a perpetual injunction issue to restrain the
defendants from making, using, or vending any folding guides made
as theretofore used by them containing any of the inventions
described and claimed in the patent, and from infringing the patent
in any way.
Under this decree, the parties went before the master and the
examination was commenced in October, 1879, in the presence of
counsel for both parties, and was continued from time to time until
November 3, 1880, when arguments were heard upon the matter and the
case was submitted. On November 12, the report was prepared and
submitted to the inspection of counsel. On the 18th, motion was
made by the defendants' counsel before the master to open the
proofs and for leave to introduce newly discovered evidence. This
motion was supported by affidavits, but was overruled by the
master, and his report was filed December 10, 1880, in which it was
found and stated that the defendants had used at various times,
from January 18, 1877, to the commencement of the suit, 27 folding
guides infringing the complainant's patent, and had folded
1,217,870 yards of goods by their use, and that during that period
there was no means known or used, or open to the public to use, for
folding such goods in the same or substantially the same manner
other than folding them by hand, and that the saving in cost to the
defendants by using the folding guides was three cents on each
piece of six yards, making the amount of profit which the
complainant was entitled to recover $6,089.35, and that during the
same period, the complainant depended upon license fees for his
compensation for the use of the patented device, and that the
amount of such fees constituted his loss or damage for the
unauthorized use of his invention, and that, according to the
established fees, the defendants would have been liable to pay for
the use of the folding guides used by them during the years 1877,
1878, and 1879 (the period covered by the infringement) the sum of
$1,350, which was the amount of the complainant's
Page 114 U. S. 107
damages. The evidence taken by the master was filed with his
report.
By a supplemental report, filed at the same time, the master
stated the fact of the application made to him to open the proofs
on the ground of surprise and newly discovered evidence (as before
stated), and that after hearing said application upon the
affidavits presented (which were appended to the report), he was
unable to discover any just ground therefor.
The defendants did not object to this supplemental report, but
on the 10th of January, 1881, they filed exceptions to the
principal report substantially as follows:
1. That instead of the double guide or folder claimed in the
complainant's patent being the only means for folding cloth or
strips on each edge during the period of the infringement (other
than that of folding by hand), the master should have found that
such strips could have been folded by means of a single guide or
folder, and that the use of such guides was known and open to the
public long before 1877, and that such guides were not embraced in
the complainant's patent.
2. That the amount of profits found by the master was erroneous,
because it appeared that folded strips, such as those used by the
defendants, were an article of merchandise, cut and folded by
different parties at a charge of 25 cents for 144 yards.
3. That the profits should not have been found greater than the
saving made by the use of the double guide as compared with the use
of a single guide, or greater than the amount for which the strips
could have been cut and folded by persons doing such business.
4. That the damages found were erroneous.
Other exceptions were subsequently filed, but were overruled for
being filed out of time.
Before the argument of the exceptions, the defendants gave
notice of a motion to the court to refer the cause back to the
master to take further testimony in reference to the question of
profits and damages chargeable against them under the order of
reference. In support of this motion, further affidavits were
presented.
Page 114 U. S. 108
The exceptions to the report and the application to refer the
cause back to the master were argued together. The court denied the
motion to refer the cause back, overruled the exceptions to the
report, and made a decree in favor of the complainant for the
profits, but disallowed the damages. That decree is now brought
here by appeal.
Page 114 U. S. 109
MR. JUSTICE BRADLEY delivered the opinion of the Court. After
reciting the facts in the foregoing language, he continued:
The appellants have assigned fourteen reasons or grounds for
reversing the decree. The first nine relate to the taking of the
account before the master and his report thereon; the last five
relate to the validity of the letters patent on which the suit was
brought. It will be convenient to consider the last reasons
first.
The bill, as we have seen, was taken
pro confesso, and
a decree
pro confesso was regularly entered up, declaring
that the letters patent were valid, that Douglass was the original
inventor of the invention therein described and claimed, that the
defendants were infringing the patent and that they must
Page 114 U. S. 110
account to the complainant for the profits made by them by such
infringement and for the damages he had sustained thereby, and it
was referred to a master to take and state an account of such
profits and to ascertain said damages.
The defendants are concluded by that decree, so far at least as
it is supported by the allegations of the bill, taking the same to
be true. Being carefully based on these allegations and not
extending beyond them, it cannot now be questioned by the
defendants unless it is shown to be erroneous by other statements
contained in the bill itself. A confession of facts properly
pleaded dispenses with proof of those facts, and is as effective
for the purposes of the suit as if the facts were proved, and a
decree
pro confesso regards the statements of the bill as
confessed.
By the early practice of the civil law, failure to appear at the
day to which the cause was adjourned was deemed a confession of the
action, but in later times this rule was changed so that the
plaintiff, notwithstanding the contumacy of the defendant, only
obtained judgment in accordance with the truth of the case as
established by an
ex parte examination. Keller,
Proced.Rom. § 69. The original practice of the English Court of
Chancery was in accordance with the later Roman law.
Hawkins v.
Crook, 2 P.Wms. 556. But for at least two centuries past,
bills have been taken
pro confesso for contumacy.
Ibid. Chief Baron Gilbert says:
"Where a man appears by his clerk in court, and after lies in
prison, and is brought up three times to court by habeas corpus,
and has the bill read to him, and refuses to answer, such public
refusal in court does amount to the confession of the whole bill.
Secondly. When a person appears and departs without answering, and
the whole process of the court has been awarded against him after
his appearance and departure, to the sequestration, there also the
bill is taken
pro confesso because it is presumed to be
true when he has appeared, and departs in despite of the court, and
withstands all its process without answering."
Forum Romanum 36. Lord Hardwicke likened a decree
pro
confesso to a judgment by
nil dicit at common law,
and to judgment for plaintiff on demurrer to the defendant's plea.
Davis v. Davis,
Page 114 U. S. 111
2 Atk. 21. It was said in
Hawkins v. Crook, qua supra,
and quoted in 2 Eq.Cas.Abr. 179, that
"the method in equity of taking a bill
pro confesso is
consonant to the rule and practice of the courts at law, where, if
the defendant makes default by
nil dicit, judgment is
immediately given in debt, or in all cases where the thing demanded
is certain; but where the matter sued for consists in damages, a
judgment interlocutory is given, after which a writ of inquiry goes
to ascertain the damages, and then the judgment follows."
The strict analogy of this proceeding in actions of law to a
general decree
pro confesso in equity in favor of the
complainant, with a reference to a master to take a necessary
account, or to assess unliquidated damages, is obvious and
striking.
A carefully prepared history of the practice and effect of
taking bills
pro confesso is given in
Williams v.
Corwin, Hopkins Ch. 471, by Hoffman, master, in a report made
to Chancellor Sanford, of New York, in which the conclusion come to
(and adopted by the chancellor) as to the effect of taking a bill
pro confesso was that "when the allegations of a bill are
distinct and positive, and the bill is taken as confessed, such
allegations are taken as true, without proofs," and a decree will
be made accordingly, but
"where the allegations of a bill are indefinite, or the demand
of the complainant is in its nature uncertain, the certainty
requisite to a proper decree must be afforded by proofs. The bill,
when confessed by the default of the defendant, is taken to be true
in all matters alleged with sufficient certainty, but in respect to
matters not alleged with due certainty or subjects which from their
nature and the course of the court require an examination of
details, the obligation to furnish proofs rests on the
complainant."
We may properly say, therefore, that to take a bill
pro
confesso is to order it to stand as if its statements were
confessed to be true, and that a decree
pro confesso is a
decree based on such statements, assumed to be true, 1 Smith's
Ch.Pract. 153, and such a decree is as binding and conclusive as
any decree rendered in the most solemn manner. "It cannot be
impeached collaterally, but only upon a bill of review, or [a
bill]
Page 114 U. S. 112
to set it aside for fraud." 1 Daniell, Ch.Pr. 696, 1st ed.
*;
Ogilvie v.
Herne, 13 Ves. 563.
Such being the general nature and effect of an order taking a
bill
pro confesso and of a decree
pro confesso
regularly made thereon, we are prepared to understand the full
force of our rules of practice on the subject. Those rules, of
course, are to govern so far as they apply, but the effect and
meaning of the terms which they employ are necessarily to be sought
in the books of authority to which we have referred.
By our rules, a decree
pro confesso may be had if the
defendant, on being served with process, fails to appear within the
time required, or if, having appeared, he fails to plead, demur, or
answer to the bill within the time limited for that purpose, or if
he fails to answer after a former plea, demurrer, or answer is
overruled or declared insufficient. The 12th Rule in Equity
prescribes the time when the subpoena shall be made returnable and
directs that
"at the bottom of the subpoena shall be placed a memorandum that
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."
The 18th Rule requires the defendant to file his plea, demurrer,
or answer (unless he gets an enlargement of the time) on the rule
day next succeeding that of entering
Page 114 U. S. 113
his appearance, and 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 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, etc. And the 19th Rule declares
that the decree rendered upon a bill taken
pro confesso
shall be deemed absolute unless the court shall at the same term
set aside the same or enlarge the time for filing the answer upon
cause shown upon motion and affidavit of the defendant.
It is thus seen that, by our practice, a decree
pro
confesso is not a decree as of course according to the prayer
of the bill, nor merely such as the complainant chooses to take it,
but that it is made (or should be made) by the court according to
what is proper to be decreed upon the statements of the bill
assumed to be true. This gives it the greater solemnity, and
accords with the English practice as well as that of New York.
Chancellor Kent, quoting Lord Eldon, says:
"Where the bill is thus taken
pro confesso and the
cause is set down for hearing, the course (says Lord Eldon in
Geary v Sheridan, 8 Ves. 192) is for the court to hear the
pleadings and itself to pronounce the decree, and not to permit the
plaintiff to take at his own discretion, such a decree as he could
abide by, as in the case of default by the defendant at the
hearing."
Rose v. Woodruff, 4 Johns.Ch. 547, 548. Our rules do
not require the cause to be set down for hearing at a regular term,
but after the entry of the order to take the bill
pro
confesso, the 18th Rule declares that 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 the entry of such order if it can be
done without answer
and is proper to be decreed. This
language shows that the matter of the bill ought at least to be
opened and explained to the court when
Page 114 U. S. 114
the decree is applied for, so that the court may see that the
decree is a proper one. The binding character of the decree, as
declared in Rule 19, renders it proper that this degree of
precaution should be taken.
We have been more particular in examining this subject because
of the attempt made by the defendants on this appeal to overthrow
the decree by matters outside of the bill, which was regularly
taken
pro confesso. From the authorities cited and the
express language of our own rules in equity, it seems clear that
the defendants, after the entry of the decree
pro confesso
and while it stood unrevoked, were absolutely barred and precluded
from alleging anything in derogation of or in opposition to the
said decree, and that they are equally barred and precluded from
questioning its correctness here on appeal unless on the face of
the bill it appears manifest that it was erroneous and improperly
granted. The attempt on the hearing before the master to show that
the reissued patent was for a different invention from that
described in the original patent or to show that there was such
unreasonable delay in applying for it as to render it void under
the recent decisions of this Court was entirely inadmissible
because repugnant to the decree. The defendants could not be
allowed to question the validity of the patent which the decree had
declared valid. The fact that the reissue was applied for and
granted fourteen years after the date of the original patent would
undoubtedly, had the cause been defended and the validity of the
reissued patent been controverted, been strongly presumptive of
unreasonable delay; but it might possibly have been explained, and
the court could not say as matter of law, and certainly, under the
decree of the court, the master could not say, that it was
insusceptible of explanation. And on this appeal it is surely
irregular to question the allegations of the bill. If anything
appears in these allegations themselves going to show that the
decree was erroneous, of course, it is assignable for error; but
any attempt to introduce facts not embraced in those allegations
for the purpose of countervailing the decree is manifestly
improper. The introduction of the original patent, pending the
appeal, was clearly irregular.
Page 114 U. S. 115
The appellants have called attention to one matter in the
allegations of the bill on which they rely for the purpose of
showing that as matter of law the reissued patent must be void. It
is stated in their tenth assignment of error as follows:
"10th. For that, on the face of the bill and the patent, the
reissued patent in suit was illegally granted, and therefore void,
and the court should have so held, and this Court is now asked to
so hold, because the bill avers that during the fourteen years of
the original term of the patent, the validity of said letters
patent was established in numerous suits in the circuit courts of
the United States, and that all persons sued took licenses and paid
therefor, as well as many others not sued, thereby averring in
substance that the original letters patent were
valid and
operative;"
"Wherefore appellants ask this court to hold that the original
letters patent, having been
valid and
operative,
as averred by complainant, for over fourteen years, no reissue
thereafter could be legally obtained, because
invalidity
or
inoperativeness are conditions precedent to the grant
of a reissue."
The answer to this assignment is obvious. The suits brought on
the original patent may have been for infringements committed
against particular parts of the invention, or modes of using it and
putting it into operation, as to which the specification was clear,
full, and sufficient, while at the same time there may have been
certain other parts of the invention or modes of using it and
putting it into operation as to which the specification was
defective or insufficient, and which were not noticed until the
application for reissue was made, or, in the original patent, the
patentee may have claimed as his own invention more than he had a
right to claim as new -- a mistake which might be corrected at any
time. At all events, the court cannot say as mere matter of law
that this might not have been the case.
We think that the objection to the decree going to the validity
of the patent and the whole cause of action cannot be
sustained.
Page 114 U. S. 116
We are then brought to the proceedings in taking the account.
The errors assigned on this part of the case are based on the
exceptions taken to the master's report which have already been
noticed. They resolve themselves into two principal grounds of
objection:
First. That the master allowed the complainant all the
profits made by the defendants by the use of the patented machine
in folding cloths and strips as compared with doing the same thing
by hand, whereas he should only have allowed the profits of using
the complainant's patented machine as compared with a single
folder, which the defendants allege was open to the public before
their infringement commenced.
Secondly. That the master, in allowing profits, took no
account of the fact that folded strips, such as those used by the
defendants, were an article of merchandise, cut and folded by
different parties at a charge of only 25 cents for 144 yards, or
about one-sixth of a cent per yard, whereas the defendants were
charged with a profit of one half of a cent per yard.
As to the first of these objections, it is to be observed first
that no evidence was produced before the master to show that,
during the period of the infringement, there was open to the public
the use of any machine for folding a single edge which was adapted
to the work done by the defendants. The only evidence adduced for
that purpose was the letters patent granted to S. P. Chapin,
February 19, 1856, and the letters patent granted to J. S. McCurdy,
dated February 26, 1856. No evidence was introduced to show that
the folding guides described in those patents were adapted to the
folding of strips for corsets, which was the work required by the
defendants and for which they used the complainant's invention. On
the contrary, it was proved by the positive testimony of the
complainant (and not contradicted) that "the Chapin device could
not be used for folding strips of materials on one or both edges
for use upon corsets," for reasons fully detailed in the testimony,
and that
"the McCurdy device is a binder calculated and adapted to fold
selvaged edged goods, such as ribbon and braid, and will fold the
strip passing through it in the center only, . . . and cannot be
used for folding raw edged strips of cloth,
Page 114 U. S. 117
either on one or both edges."
The complainant also testified that there was no other way known
to him (and he testified that he had large experience on the
subject) to do work like that done by the defendants except by
hand, or in the use of another patent owned by him, namely, the
Robjohn patent, dated April 19, 1864 (which was produced in
evidence), which consisted of a folding guide, folding one edge in
combination with a device for pressing said fold to an edge, and
then passing said folded strip through a narrower folder, folding
the other edge, and pressing said fold by a pressing device. No
evidence was adduced by the defendants to contradict this
testimony.
It is proper to remark here that the affidavits presented to the
master and those afterwards presented to the court as grounds of
the respective applications to reopen the proofs cannot be looked
into on this hearing. They form no part of the evidence taken
before the master on the reference, and no error is assigned (even
if error could be assigned) to the refusal of the court to refer
the case back to the master for the purpose of taking further
testimony.
The second objection to the report is that the master, in
estimating the profits chargeable to the defendants, did not take
into account the fact that folded strips, such as those used by the
defendants, were an article of merchandise, cut and folded by
different parties at a charge of only 25 cents for 144 yards. To
this objection it may be observed that the evidence before the
master did not show by what process such folded strips were made,
nor whether they were not really made by infringing the
complainant's patent. As the proof stood before the master, they
must have been made by the use of the complainant's machine, for
there was no other known machine by which they could have been made
at any such cost. And if made by the use of complainant's machine,
the inference must be that the persons making them were infringing
the complainant's patent, for they are not named in the list of
those to whom the complainant had granted licenses, which list was
presented before the master at the defendants' request. If made by
such infringement, they can hardly be set up against the
complainant to reduce the amount of profits made by the
Page 114 U. S. 118
defendants. There is something singular about this part of the
case. If folded strips, suitable for the defendants' purpose, could
have been procured in the market by them at such a low price as is
pretended, why did they not procure them in that way after being
enjoined against using the complainant's machine, instead of making
them by the disadvantageous method of using a single folder and
folding one edge at a time? Was it from a knowledge of the fact
that the persons who folded such strips were infringing the
complainant's patent, and a consequent unwillingness to become
further complicated in such infringements? At all events, since the
defendants chose to make their own folded strips in their own
factory, instead of going outside to purchase them or have them
made by others, they cannot justly complain of being accountable
for the profits realized in using the complainant's machine for
that purpose. It might have been a better financial operation to
have bought of others or employed others to make the folded strips
which they required, just as, in the case of the Cawood Patent, the
railroad company would have done better not to have mended the ends
of their battered rails, but to have had them cut off; but as they
chose to perform the operation, they became responsible to the
patentee for the advantage derived from using his machine.
Cawood Patent, 94 U. S. 710.
We do not think that the objection is well taken.
It follows that all the reasons of appeal must be overruled.
No error or ground of appeal is assigned upon the refusal of the
court below to refer the cause back to the master for the purpose
of reopening the proofs, although some observations on that point
are submitted in the brief of the appellants. We think that that
matter was fairly addressed to the discretion of the court, and
cannot properly be made the ground of objection on this appeal. New
evidence, discovered after the hearing before the master is closed,
may in proper cases be ground for a bill of review on which issue
may be joined and evidence adduced by both parties in the usual
way. The defendants are not concluded by the refusal of the court,
on mere affidavits, to refer the cause back to the master. An
examination, however, of the affidavits presented to the court
Page 114 U. S. 119
does not convince us that a further inquiry should have been
ordered.
In thus considering the case on its merits, as presented by the
evidence taken before the master, his report thereon, and the
exceptions to such report we have deemed it unnecessary to make any
remarks as to the status of a defendant before a master on a
reference under a decree
pro confesso. Both parties in
this case seem to have taken for granted that the rights of the
defendants were the same as if the decree had been made upon answer
and proofs. In the English practice, it is true, as it existed at
the time of the adoption of our present rules (in 1842), the
defendant, after a decree
pro confesso and a reference for
an account, was entitled to appear before the master and to have
notice of and take part in the proceedings, provided he obtained
and order of the court for that purpose, which would be granted on
terms. 2 Daniell Ch.Pr. 804, 1st. ed.; ditto, 1358, 2d ed. by
Perkins;
Heyn v. Heyn, Jacob 49. The former practice in
the Court of Chancery of New York was substantially the same. 1
Hoffman Ch.Pr. 520; 1 Barb.Ch.Pr. 479. In New Jersey, except in
plain cases of decree for foreclosure of a mortgage (where no
reference is required), the matter is left to the discretion of the
court. Sometimes notice is ordered to be given to the defendant to
attend before the master, and sometimes not, as it is also in the
chancellor's discretion to order a bill to be taken
pro
confesso for a default or to order the complainant to take
proofs to sustain the allegations of the bill. Nixon Dig., Art.
Chancery, § 21; Gen.Orders in Chancery XIV., 3-7;
Brundage v.
Goodfellow, 4 Halst.Ch. 513.
As we have seen, by our 18th Rule in Equity, it is provided that
if the defendant make default in not filing his plea, demurrer, or
answer in proper time, the plaintiff may, as one alternative, enter
an order as of course that the bill be taken
pro confesso,
"
and thereupon the cause shall be proceeded in ex parte."
The old rules, adopted in 1822, did not contain this
ex
parte clause; they simply declared that if the defendant
failed to appear and file his answer within three months after
appearance day, the plaintiff might take the bill for
confessed,
Page 114 U. S. 120
and that the matter thereof should be decreed accordingly, the
decree to be absolute unless cause should be shown at the next
term.
See Equity Rules VI and X of 1882, 7 Wheat. vii.,
and
Rendleton v. Evans, 4 Wash.C.C. 336;
O'Hara v.
MacConnell, 93 U. S. 150. Under
these rules, the English practice was left to govern the subsequent
course of proceeding, by which, as we have seen, the defendant
might have an order to permit him to appear before the master and
be entitled to notice. Whether under the present rules a different
practice was intended to be introduced is a question which it is
not necessary to decide in this case.
The decree of the circuit court is affirmed.
* Reference is made to the first edition of Daniell (published
1837) as being, with the second edition of Smith's Practice
(published the same year), the most authoritative work on English
Chancery Practice in use in March, 1842, when our equity rules were
adopted. Supplemented by the general orders made by Lords Cottenham
and Langdale in August, 1841 (many of which were closely copied in
our own rules), they exhibit that "present practice of the High
Court of Chancery in England," which, by our 90th rule, was adopted
as the standard of equity practice in cases where the rules
prescribed by this Court or by the circuit court do not apply. The
second edition of Mr. Daniell's work, published by Mr. Headlam in
1846, was much modified by the extensive changes introduced by the
English orders of May 8, 1845, and the third edition by the still
more radical changes introduced by the orders of April, 1850, the
Statute of 15 & 16 Vict., c. 86, and the general orders
afterwards made under the authority of that statute. Of course, the
subsequent editions of Daniell are still further removed from the
standard adopted by this Court in 1842, but as they contain a view
of the later decisions bearing upon so much of the old system as
remains, they have on that account a value of their own, provided
one is not misled by the new portions.
