Unknown County MI Archives Court.....Bank, Of Michigan V. Williams 1837
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 August 9, 2008, 7:19 am

Source: Cases In Chancery
Written: 1837

CASES IN CHANCERY
FIRST CIRCUIT.

Bank of Michigan v. John B. Williams.

Plea of former suit pending. A plea of a former suit pending in another court 
for the same cause of action must set forth the general character and objects 
of the former suit, and the relief prayed for. (a.)

Motion to open default: Affidavit of merits. On motion to open a default, the 
affidavit of merits should be made by the defendant himself, or, if made by 
counsel, a sufficient reason should be shown for its not being made by the 
party. (b.)

Hearing upon a plea. The plea was of a former suit pending. It alleged in very 
general terms that another suit was pending in the supreme court for the same 
cause of action, and seeking the like relief prayed by the bill in this cause.

Joy and Porter, for complainant.

The plea filed in this suit is in itself defective, radically. It does not 
exhibit any portion of the bill filed in the supreme court which can make it 
appear to this court that both bills were for the same identical matter; which 
ought to have been done. So much of the first bill should have been set up in 
the plea as would make it appear that the same matter was involved in both. 
(See Story's Eq. Pl., 570; Beames' Pleas in Equity, 140.) In pleas of this 
sort, says Story, there are several matters essential to their validity. The 
pleas should set forth with certainty the commencement, the general nature, 
character, objects and relief prayed for in the former suit.

In a plea of former decree, etc., so much of the bill and answer must be set 
forth as will show that the same point was then in issue. (Mitford, 258; 14 
Johns. Rep., 501.) The plea must not set up the facts historically, but must 
set out the subject matter of the suit pending, with sufficient averments. (3 
Athyns, 589; 2 Atkyns, 603.)

The above authorities are conclusive as to the validity of this plea, and it 
cannot be allowed. Should the court, however, think differently, and if it 
shall think this plea well pleaded, it would only put us to an election which 
suit we would prosecute, even supposing both were now pending; or perhaps 
order the first suit to be dismissed with costs, which was actually done 
before this suit was commenced. (See Cooper's Eq. Pl., 275; Story's Eq. Pl., 
570, 572; Beames, 151; Mil PL, 321.)

H. T. Backus, for defendant.

The Chancellor.—The plea in this case alleges generally, that another suit is 
pending in the supreme court for the same cause and for the like relief. This 
is insufficient. The plea should set forth the general character and objects 
of the former suit, and the relief prayed. (Story's Eq. PL, 570; 3 Atk., 590.) 
This is not done here, and the plea must be overruled as insufficient.

An order, pro confesso, was entered October 27, and H. T. Backus, solicitor 
for defendant, filed an affidavit November 5, and moved to set aside the 
order, pro confesso.

He states in his affidavit, that in the order adjudging the plea to be 
insufficient, defendant was allowed to file an answer; that he supposed he had 
forty days within which to file his answer, and so advised the defendant; 
that, "as he believes, the said defendant has to said bill of complaint a good 
defense to a part at least of the amount claimed therein, by way of offset," 
and that he had been unable to prepare the answer, etc.

The chancellor denied the motion on the ground that the affidavit was made by 
the solicitor, and no reason was shown why it was not made by the party 
defendant himself.

--------------------
(a.) As to the requisites of a plea in chancery in general, see Schwarz v. 
Wendell, post, 395; Thomas v. Stone, Wal. Ch., 117; Albany City Bank v. Dorr, 
Wal. Ch., 317; Carroll v. Potter, Wal. Ch., 355; Parker v. Parker, Wal. Ch., 
457; Emerson v. Atwater, 7 Mich., 12.

(b.) An affidavit of merits must show what the merits are. Thayer v. Swift, 
Wal. Ch., 384. See Stockton v Williams, post, 241.

Additional Comments:
CASES DETERMINED IN THE COURT OF CHANCERY FOR THE STATE OF MICHIGAN
BY ELON FARNSWORTH, Chancellor 

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