Page:United States v. Samperyac.pdf/19

136 Rh   that title is alleged to have been discovered, a clear case is made out for a bill of review.

If, then, this court possesses the jurisdiction to entertain a bill of review in the case now before the court, and a ease is made out by the bill, according to the principles of equity, the next inquiry is, Does the evidence adduced call upon the court to pronounce a decree of reversal?

What is the evidence? First, the defendant, Samperyac, the original petitioner in whose favor the former decree was rendered, has failed to answer this bill, and, under a rule of this court, an order of publication was duly published in the Arkansas Gazette; and at the October term, 1830, of this court, the bill was taken for confessed as to the said defendant. The inquiry arises as to the effect of taking the bill for confessed. The doctrine is well settled, that when the allegations of a bill are distinct and positive, and the bill is taken for confessed, such allegations are taken as true without proof. That a decree pro confesso is like a judgment by nil dicit at common law. Williams v. Corwin, 1 Hop. Ch. Rep. 471; 3 Atkyns, Rep. 468. In the ease of Hawkins v. Crook, 2 P. Wms. 556, the bill alleged a decree to have been obtained by fraud.

The decree assumes that the order to take a bill pro confesso admitted the facts charged as fraudulent, and the court plainly took them to amount to fraud, and without further proof, decreed the appropriate relief. The authorities clearly establish this principle, that if the allegations are of a nature so distinct and positive, that, taking them to be true, the court can make a decree upon them, it will, upon the order pro confesso, decree without proof. Where they are in their nature so defective or vague that a precise decree cannot be made upon them, proof must be adduced from the necessity of the case. No rule can be better founded in reason and propriety.

A refusal to deny where the party is legally bound to speak, is equal to an admission of the charges made against him. What is admitted, need not be proved.

The allegations are incontrovertibly established, when confessed by him against whom they are made. This is the doctrine applicable to original bills; and we have, in our researches,