| Ill. | Jan 15, 1861
A decree pro confesso, as we understand it, concludes the party only as to the averments in the bill. He cannot, on error, allege the want of testimony, or the insufficiency or amount of the evidence the court may have heard. The rule is well settled that a defendant in chancery cannot, on error, object to the sufficiency of complainant’s proof when the bill is taken for confessed. It is, in such case, discretionary with the court to require proof or not. Manchester et al. v. McKee, Ex’r, 4 Gilm. 517; Johnson v. Donnell et al., 15 Ill. 98. He may however, on error, contest the sufficiency of the bill itself, and insist that the averments contained in it, do not justify the decree.
The bill in this case wants an essential averment, without which, the decree should not have passed. The mortgage and agreement filed with the bill, show most clearly, that defendants were indebted to complainants, originally, in the sum of twenty-four hundred dollars, and in part discharge thereof were to receive of the defendants three hundred thousand brick at their market value, and the parties assuming that this quantity of brick would amount to eighteen hundred dollars, the note of six hundred dollars was executed for the supposed balance. Now the fact may be that the market value of the brick was such as to reduce the amount of the not'e much below six hundred dollars, to which reduction the defendants were entitled, hence the necessity of an allegation in the bill of their market value. The bill was imperfect without it, and the decree must be reversed, and the cause remanded, with leave to complainants to amend their bill.
Decree reversed.