
    Lea vs. Vanbibber.
    An answer declared insufficient on exceptions thereto, is no answer, and judgment fro confesso may be taken on all the allegations of the bill unless a full answer be made.
    This bill was filed in the Chancery Court at Tazewell. A decree was rendered by Chancellor Ridley in favor of the complainant, and the defendant Vanbibber appealed.
    
      
      Peck, for the complainant in error,
    Evans, for the Defendant in error.
   "GRben, Judge,

delivered the opinion of the court.

In this case, the defendant filed his answer to the complainant’s bill — to which the complainant’s solicitor filed exceptions, which, at November Rules, 1842, were sustained. The defendant,Vanbibber, failing to put in any additional answer, a judgment pro confesso was taken against him at the January Rules, 1843. In June, 1843, a replication was filed to the answers of Kincaid and Vanbibber. At the December Term, 1843, the cause having been set down for hearing on the answer of Kincaid, and replication thereto, and the judgment pro confesso against Ferrall and Vanbibber — it was heard and determined in favor of the complainant. On the hearing, the defendant filed a bill of exceptions, which states, that the Chancellor ruled that inasmuch as the exceptions to Vanbib-ber’s answer were sustained, and he failed to put in any other and further answer to the bill, the same should be taken as though there had been no answer, and that the pro confesso which had been taken applied to the whole matter of the bill — to'jWhich opinion the defendant excepted. The defendant, Yanbibber, alone prosecutes this appeal.

It is now insisted that the replication to the answer of Kin-caid and Vanbibber shall be taken as a waiver of the pro confesso which had previously been taken, and that Yanbib-ber’s answer should have been heard on the trial.

No allusion is made in the bill of exceptions to this replication; and the only question then made was, whether the case should be treated as though Yanbibber had filed no answer.

Replications are usually, in practice, put in by the Clerk and Master, and the introduction of Yanbibber’s name in the replication to Kincaid’s answer, was a mere oversight, which neither party, at the hearing, seemed to consider as constituting, in fact, any replication to the answer of Yanbibber. Having been disregarded at the hearing in the Chancery Court — this replication will be disregarded here also.

The only question, then, is that which is made in the bill of exceptions: — whether, where an answer is excepted to, for insufficiency, and the exceptions are sustained, and no further answer put in — can the complainant disregard the answer altogether, and take the bill pro confesso? In 1. Newl. Ch. Prac. 95, it is laid down that, “a bill may be taken pro con-fesso, though an answer is put in, if it is reported insufficient, it being then as no answer.”

This authority is conclusive in favor of the Chancellor’s decision, and we, therefore, affirm his decree.  