
    Miller vs. Hild and wife.
    The court will open a decree obtained by surprise, but not where a party has had notice of the suit and has had an opportunity of making his defence, and has neglected doing so.
    On motion to open decree.
    Gifford, for motion.
    
      Haines, contra.
   The Chancellor.

Hild and wife, upon petition, move to open the decree obtained against them in this cause. 'Their motion is on the ground of surprise. The facts stated in the petition are not supported by the affidavits, but, on the contrary, are contradicted by them. The petition states, that on receiving the subpoena, the petitioner did not understand its meaning, and that he applied to counsel for information, who told him it was about some suit in chancery ordering him to appear at Trenton; but it was not necessary for him to go, as there was nothing to do there, and that he, the counsel, would attend to it. The counsel, on the contrary, says, that when Hild first called on him, he told him he could get the necessary information, and that he must call again, and that 'Hild did call again; that in the mean time the counsel procured a copy of the bill; and when Hild called, he explained to him the nature of the suit, and informed him that it was necessary for him to answer the bill, and that he could draw the answer. After that Hild paid no further attention to the matter. James Haines, esq., also testifies to facts showing that( Hild could not have been surprised by the decree. Mr. Haines notified him that the suit would be commenced. After the subpoena was served, he called again upon Hild, and endeavored to settle the suit. He testifies to other facts, which show that Hild had every opportunity to defend the suit, if he was disposed to do so.

There is nothing to justify me in opening this decree.  