
    George Ramsey et al. vs. Aaron Barbaro.
    When the defendant to a bill in chancery is not to be found, and there is no white person above sixteen years of age at his place of residence, the process may be served by leaving a copy at some public place at such defendant’s residence ; and fastening the process on his door is leaving it at a pubfic place.
    Where a bill was filed in April to the June term, 1848, by one partner against his co-partner, for an account, alleging a specific sum to be due by the defendant, and that he was insplvent, and his co-défendants owed him'a specific sum, and praying the subjection of the latter to the payment of the debt due to complainant; and at the'return term, the bill was taken for confessed as to all the parties, referred for an account to the clerk, and upon his report - sit the sa.mp form, a final decree rendered for complainant, decreeing; the defendant partner to pay him the sum alleged in the bill to be due, and decreeing, his co-defendants to pay the sum they owed him, to the complainant ; it was held, on writ of error to the high court of errors and appeals, no objection being taken to the jurisdiction of the chancery court, as against the garnishees of the partner-defendant, that the decree should not be disturbed. _
    In this case, the nature and effect of taking a bill for confessed, was considered at length, the authorities reviewed, and the conclusion reached, that it authorized such a decree for the complainant, without other proof, as the facts alleged entitle him to in the judgment of the court.
    A re-argument will not be granted by the high court of errors and appeals, on the ground that the counsel on the first argument did not present all the points that arose in his case, and desired to be heard upon others; not then discussed.
    In error from the southern district chancery court, at Natchez; Hon. James M. Smiley, vice-chancellor.
    On the 12th of April, 1848, Aaron Barbaro filed his bill, alleging, that he and George Ramsey, a transient person, then sojourning in the county of Adams, entered into a co-partnership 'in the business of cutting cord wood, making pickets, staves and heading, and rafting them from Old River to New Orleans; Ramsey had prior to that time sold in lots and parcels enumerated, cord wood, pickets and staves belonging to the partnership of the value of $1050, and intending to cheat him, had uniformly refused, though applied to in an amicable manner, to pay him any part whatever of said sum, one Ipalf of which he was entitled to ; and also refuses to make any settlement with him, under various false pretences.
    That Ramsey is not a resident permanently of this state, is insolvent, and has no property of a tangible character, out of-which his demand could be made. Ramsey had recently sold to George Evans and John Coy, partners in the timber business, about one hundred and twenty, or one hundred and fifty tons of cypress timber, at the price of $600, which sum was still due to Ramsey; Evans & Coy were made defendants.
    The bill prays an injunction restraining Evans & Coy from paying Ramsey, and that Ramsey be compelled to account with him, and be clecrmed to pay him what should be found due from the proceeds of partnership effects sold by him; that Evans ifc Coy be required also to answer the premises under their separate and several corporal oaths, and be enjoined and restrained from paying over to Ramsey the purchase money of said cypress timber.
    A subpoena was issued against the defendants, and placed in' the hands of a special deputy to execute, who'made the following return of execution on the same.
    “Executed 13th of April, 1848, on George Evans, also on John Coy, George Ramsey same date, by posting a copy for each on the front door of their residence, there being no free white person on the premises willing to receive the same, they being absent. S. B. Newman, Sheriff,
    By R. W. Samuel, Spec. D. Sh’ff.”
    This process was ma'de returnable to the June term, 1848, of said court. On the 28th day of June, 1848, a pro confesso upon this return was taken, the cause referred to E. S. Russell, a commissioner of the court, to ascertain the amount due of principal and interest to complainant by defendant, Ramsey; also the amount due from defendants, George Evans and John-Coy, to Ramsey, as enjoined, in their hands.
    The commissioner on the 20th day of June, 1848, filed his report, showing, that from the complainant’s bill, the defendant, Ramsey, was indebted to complainant in June, 1846, in the sum of $525, which, with interest to date of report, made $588 ; and that there appeared due from George Evans and John Coy to defendant, Ramsey, as appears from complainant’s bill, the sum, of $600, which is enjoined in their hands.
    At the same term on the 3d of July, on motion of the complainant, this report was confirmed, and final decree ordered; and on the 5th day of July, a final decree signed in favor of complainant against defendant, Ramsey, for $588, with six per cent, interest and costs of suit, and the decree continued, “it appearing that the defendants, Evans & Coy, as partners, are indebted to said Ramsey in the sum of $600, as in said bill alleged; which sum has been duly attached and enjoined in their hands to abide the event .of this suit. It is therefore decreed, that the said complainant do have and recover from said Evans & Coy, as partners, the said sum of $588, with six per cent, interest from date, together with the costs of this proceeding, to be taxed so far as said sum does not exceed $600, and the interest thereon, and that said complainant have execution against said Evans & Coy.”
    From this decree, this writ of error is prosecuted, with super-sedeas, by all the defendants.
    
      Sanders and Haggin, for plaintiffs in error,
    Cited Hutch. Code, 841, sec. 44; lb. 765; lb. 933; Turner’s Digest, 133; lb. 139, sec. 12, 31; Faiheree v. Long, 5 How. (Miss.) 661; Tomlinson v. Hoyt, 1 S. & M. 515; Eskridge v. Jones, lb. 595; 1 Daniel, Ch. Pr. 569, 570, 574; McNeill v. Burton, 1 How. 510.
    
      Davis and Cox, for defendant in error.
   Mr. Chief Justice Shabicey

delivered the opinion of the court.

Barbaro filed his bill in chancery, in which he alleges that a partnership had been entered into between Ramsey and himself, in the business of cutting cord wood, and getting out pickets and staves; tfiat the parties proceeded in their business, and that Ramsey went to New Orleans several times with wood, pickets, staves, &c., and received therefor the sum of one thousand and fifty dollars, but has wholly failed and refused to account to complainant for his half of the proceeds. It is also alleged that Ramsey is a transient person, but was then sojourning in the county of Adams, and is wholly insolvent and unable to pay the amount of any decree that might be rendered; but that Evans & Coy had lately purchased a quantity of timber from the said Ramsey, and were indebted to him in the sum of six hundred dollars; wherefore they are made parties, and an injunction prayed against them.

Process was issued in April, 1848, returnable to the June term, which was executed by posting it on the door of the residence of the parties, they being from home, and no person there to receive it. They failed to answer, and a pro confesso was taken at the return term, the matter of the bill referred to the clerk, who reported thereon, and a final decree rendered at the same term against Ramsey for the amount alleged to be due, and also directing the,other defendants to pay to Barbaro.

Several objections are now taken to the decree. First, it is said the process was not regularly served; but this is not well founded. Process at law may be served personally, or by leaving a copy with some white person, above sixteen years of age, at the residence of the defendant; or-, if there be no such person there, then by leaving a copy at some public place at the residence of the party; and all process issuing from the court of chancejy, where no bail is required, may be served in the same way. H. & H. Dig. 510. Fastening the process on the door was leaving it at a public place about the residence of the party.

It is also insisted, that XYiQpro confessso did not authorize the court to make a final decree, as it did, without proof of the alie-gations of the bill. This is an important question, and has received due consideration. The authorities are not entirely consistent. In tracing back this practice of talcing bills pro confesso, it is found to be of comparatively recent origin. It was adopted as a substitute for the process of sequestration, which was more tedious; and it is said to be in consonance with the rules and practice of the common law, where, if the defendant made default by nil dicit, judgment was immediately entered against him, when the thing demanded was certain; but when it was uncertain, a judgment interlocutory was given, and a writ of inquiry went to ascertain the damages. 1 Harrison’s Chancery, 274. In Davis v. Davis, 2 Atk. 21, Lord Hardwicke said, the taking a bill pro confesso in equity, was analogous to taking the declaration for true when the plea of the defendant was insufficient. From the practice of the courts of common law it no doubt originated. But by some means or other, it has been extended so far beyond its original, that all analogy between them has ceased. The plaintiff at law is still bound to prove his cause of action after default, or he recovers but a nominal sum; but by a default in answering a bill in chancery, all proof seems to be dispensed with, whilst it seems difficult to give any good reason why the same rule should not prevail in both cases.- If a failure to answer a declaration is only an admission of a cause of action, but not an admission of the amount claimed, why should a failure to answer a bill in chancery be any thing more? Yet the current of the more modern authorities seems to be the other way. In Caines v. Fisher & McLaughlin, I Johns. Ch. Rep. 8, Chancellor Kent said, “ If the defendant has appeared and will not answer, he ought to be concluded in the same manner as he is by a neglect to plead to a declaration at law.” If these remarks could be regarded as precisely defining the analogy, we should have no difficulty; the allegations should be proved, if a default in chancery only concludes the party suffering it in the same way as it does at law.

In the case of Williams v. Corwin, Hopk. Ch. Rep. 476, this question was directly raised, and it was decided that when the allegations are distinct and positive, they are to be taken as true after pro confesso. But when they are indefinite, or the demand is in its nature uncertain, the certainty requisite to a decree must be afforded by proof. In Robinson v. Townshend, 3 Gill & John. 424, it is said the neglect to answer amounts only to an admission of the allegations of the bill, and nothing more. And the case of Platt v. Judson, 3 Blackf. 235, also decides that if the charge in the bill be sufficiently explicit, the complainant, after a pro confesso, may have a final decree without proof. In Landon v. Ready, 1 Simons & Stuart, 44, it is decided that, by a pro confesso, the facts stated in the bill are to be taken to be true, but the plaintiff can only have such a decree as the facts of the case entitle him to in the judgment of the court. This case is more directly to the point than any other decision in England that has fallen under our notice, although others seem to lead to the same result. 1 Yernon, 223, and cases there cited.

In Hargrove v. Martin, Pleasants & Co., 6 S. & M. 61, there were several defendants, some of whom were infants, who answered by guardian. Against the other defendants a pro con-fesso was taken. We held that the pro confesso could not affect the rights of the infants; and it was also said that, “ taking a case for confessed in equity, entitles the complainant to a decree only against such party, not against the others.” This was not saying on what terms he would be entitled to such decree, though it was a very clear intimation that he would be entitled to it without proof.

In an anonymous case reported in 4 Hen. & Munf. 476, the question was decided directly the other way. The question had been raised in several cases, and the court took time to consider of the point. It is the only case that runs out and maintains the analogy between a judgment by default at law, and taking a bill for confessed in chancery. It places them on the same footing, and holds that the plaintiff in either court can recover no more than he could entitle himself to by proof.

But as the rule seems to be tolerably well settled the other way by adjudged cases, and as the chancery practice seems to ' be settled by a rule of that court in conformity with them, it is perhaps safest to follow them, although they may have departed from the original practice in England.

It is objected that the court has no jurisdiction as to Ramsey, because he is not a non-resident, and the proceeding is not by attachment. The subject matter is within the jurisdiction of the court, it being a matter of account between partners, and a bill in chancery is now resorted to in such cases, instead of the old action of account. It might be more questionable whether the court could give the remedy as against Evans and Coy; but its jurisdiction has not been questioned, either by demurrer or in the'argument, and we shall not challenge it.

Decree affirmed,

A re-argument was applied for in this case, when the chief justice delivered the following opinion.

In this case a re-argument has been applied for, predicated on an intimation or doubt thrown out by the court. The point was not made in the assignment of errors, nor was it raised in argument, but it is entirely a new one. We cannot grant re-arguments on points or questions not raised on the first argument, or assigned for error. This would be tolerating experiments on the judgment of the court, and trying cases by halves,  