
    Thomas B. W. Stockton and others vs. Gardner D. Williams and others.
    A regular order to take tké 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, slate the nature of his defence, and his belief in the truth of the matters constituting such defence.
    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 defence to his solicitors, and is advised by his said solicitors, and verily believes that he has a goo3 and substantial defence 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, &c.
    December 2.
    Hunt and Watson, the solicitors for Williams, in their affidavits excuse the default, on the.ground of a misapprehension of the practice, &c., and also state their belief that the defendant, Williams, has a defence on the merits, &c.
    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 / led, be exhibited. 1 Hoffm. Pr., 553; Herne vs. Ogilvie, 11 Ves., 77.
    The court will also require to be satisfied, both that the answer is material, and apparently ful!. 1 H-'ffm. fr., 553.
    The defendant should have stated the nature of his defence, before making this motion. Lansing vs. McPherson, 3 Johns. C. R., 424; Hunt vs. 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, though 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 defence, and his belief in the truth of the matters constituting such defence, so far, at least, as to enable the court to see that in justice, will probably be done if the order to take the bill as confessed, is permitted to stand. Hunt vs. Wallis, 6 Paige, 371; Lansing vs. McPherson, 3 Johns. Ch. R., 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.  