Unknown County MI Archives Court.....Stockton, V. Williams 1837
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 August 9, 2008, 7:35 am

Source: Cases In Chancery
Written: 1837

CASES IN CHANCERY
FIRST CIRCUIT.

Thomas B. W. Stockton and others v. Gardner D. Williams and others.

Setting aside default. A regular order to take the bill as confessed will not 
be set aside upon a simple affidavit of merits, although an excuse is given 
for the default.

In such case, the defendant must either produce the sworn answer which he 
proposes to put in, or must in his petition or affidavit state the nature of 
his defense, and his belief in the truth of the matters constituting such 
defense.

The bill in this case was taken, pro confesso, against all the defendants; 
defendant Williams moves to set aside the order, pro confesso, and for leave 
to answer, which motion is founded on the affidavits of defendant Williams and 
his solicitors. Williams, in his affidavit, states that he has fully and 
fairly stated his defense to his solicitors, and is advised by his said 
solicitors, and verily believes, that he has a good and substantial defense on 
the merits, to the complainant's bill of complaint, and that great injustice 
would be done if he should be precluded from putting in an answer, and thereby 
having an opportunity of contesting the validity of the claim set up by the 
complainants; that the property in controversy is of great value, etc.

Hunt and Watson, the solicitors for Williams, in their affidavits excuse the 
default, on the ground of a misapprehension of the practice, etc., and also 
state their belief that the defendant, Williams, has a defense on the merits, 
etc.

Hunt and Watson, in support of the motion.

Fraser and Romeyn, opposed the motion.

Before the court will open an order to take the bill, pro confesso, it will 
require that the answer proposed to be filed be exhibited. (1 Hoff. Ch. Pr., 
553; Heme v. Ogilvie, 11 Ves., 77.)

The court will also require to be satisfied, both that the answer is material, 
and apparently full. (Hoff. Ch. Pr., 553.)

The defendant should have stated the nature of his defense before making this 
motion. (Lansing v. McPherson, 3 Johns. Ch., 424; Hunt v. Wallis,, 6 Paige, 
372.)

The Chancellor.—A regular order to take the bill as confessed will not be set 
aside upon a simple affidavit of merits, although an excuse is given for the 
default. In such cases, the defendant must either produce the sworn answer 
which he proposes to put in, so that the court may see that he has merits, or 
must, in his petition or affidavit, state the nature of his defense, and his 
belief in the truth of the matters constituting such defense, so far at least 
as to enable the court to see that injustice will probably be done if the 
order to take the bill as confessed is permitted to stand. (Hunt v. Wallis, 6 
Paige, 371; Lansing v. McPherson, 3 Johns. Ch., 424.)

The defendant may have twenty days to exhibit his answer, under the 
circumstances of this case.

The answer having been exhibited within the twenty days, the chancellor opened 
the default, and permitted the same to be filed on payment of costs.

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

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