
    Dangerfield and Others v. Claiborne and Others.
    February Term, 1808.
    Chancery Practice — Answer— Not Responsive to Allegation ol Bill — Effect.-—Where the answer is not responsive to a material allegation of the bill, the plaintiff may except to it as insuhicient. or may move to have that part of the bill taken for confessed, and an order of Court to that effect served on the defendant; bnl, if he does neither, he shall not, on the trial, avail himself of any implied admission by the defendant.
    On the argument of this case, it was contended, on behalf of the plaintiffs, that the answer was not responsive to all the material allegations of the bill; and that those allegations, not answered, should be considered as admitted by the defendants.
   PER CURIAM.

This case was brought on in the usual way ; upon bill, answer of some of the defendants, general replication, and publication of depositions: and the question now to be settled is an important one in practice. It *ls whether allegations contained in the bill, not answered, shall be considered as admitted, or must be proved by the plaintiffs. The plaintiffs might have excepted to the answer as insufficient ; or they might have filed a special replication, and have put in issue those parts of the bill to which the answer was responsive ; and this would not have been an admission of any other part. But they have filed a general replication, the effect of which, in this case, is the same with that of a special replication, where the answer is fully responsive to the whole bill; for the replication, though general, and averring the whole bill to be true, and denying the matters in the answer, only puts those matters in issue; so that the allegations of the bill, not answered, but only averred to-be true by the general replication, remain to he proved by the plaintiffs, agreeably to the effect of their replication, or to be admitted by the defendants. And have they admitted any thing ? If they have, where is the evidence of such admission ? To allow a plaintiff to say that so much of his own bill, not answered, is admitted, would be to allow him an advantage for not excepting to the answer, and thereby to surprise the defendant on the trial.

The rule in future will be understood as settled; that, where the answer is not responsive to a material allegation of the bill, the plaintiff may except to it as insufficient, or may move to have that part of the bill taken for confessed; but if he does neither, he shall not, on the trial, avail himself of any implied admission by the defendant : for, where the defendant does not answer at all, the plaintiff cannot take his bill for confessed, without an order of Court to that effect, and having it served upon the defendant ; and this is the only evidence of his admission. Of course, if this mode of iiro-ceeding, as to the confession of the whole bill, be correct, it must be equally correct as to the confession of any part.”  