Anonymous

4 Va. 476

• Court: Virginia Chancery Court
• Decided: September 15, 1809
• Status: Published

Opinion

By the Chancellor.

At law, if a defendant makes default, in any action of debt, founded upon a bqnd, single bill, promissory note, or other writing, signed by himself, for the payment of money or tobacco, judgment may be entered thereupon for the same with interest; but if the bond, bill, note, or other writing be not- filed, no judgment can be entered ; and so in equity, if a suit be brought to, foreclose a mortgage, and the bill be taken as confessed, a decree may be entered accordingly; but, if the deed of mortgage, referred to by the bill, is not filed, no decree can be entered. Again, at law, an action on the case for money had and received is brought, and a judgment by default, and a writ of inquiry awarded, directing a Jury to ascertain the damages, upon the execution thereof, the plaintiff cannot recover more than what he can prove, and, if he is without proof, he shall not have a verdict for more than a cent. And so in equity, if a suit be brought for the settlement of accounts which could not be done at law, and the defendant makes default, yet the plaintiff shall not have a decree without proof; and for that purpose, the legislature hath provided, that “ the plaintiff may have a general commission to take depositions, or he may move the Court to bring the defendant in to answer interrogatories, at his election, and proceed on to a hearingso that the fair construction of a judgment by default at law, or bill in equity, taken as confessed, is, that the plaintiff, in either Court, can recover no more than he can entitle himself to by proof.\ to be obtained according to the course of the Court, which imposes no. hardship upon him, as in either Court, in case of an issue, he would have to prove his claim; and the judgment by default at law, or the bill, as confessed in equity, only fixes the period, beyond which the plaintiff shall not be delayed in obtaining his proof, and proceeding “ on to a hearing

The motions for decrees, under such circumstances, were denied, and the bar requested to take notice that the prao dee, in this respect, was now settled.