
    Cogswell against Vanderbergh.
    When proceedings have been regular, a mere affidavit of merits is not sufficient ground to set them aside. In such a case, if there has been a mistake on which the judgment has been taken, the defendant will be relieved only on costs and terms,
    Woodworth, on the part of the defendant, moved to set aside the default, and all subsequent proceedings on two affidavits, made by the defendant and another person, stating that a copias ad respondendum, in this suit, was duly issued and served in the month of November last; that ii February following, the defendant called on the [*156] plaintiff, and ^offered to pay part of the debt if ho could have time for the residue; that this being agreed to, the defendant paid 300 dollars, and the plaintiff promised to stay all proceedings; the defendant’s affidavit further showed that he had frequently called on the plaintiff to settle the residue, but that he was either from home, or engaged in company, and had, notwithstanding his agreement to stop the suit, gone on, obtained a judgment by default, and taken out execution; that the defendant, relying on the agreement, had not employed any attorney, and the execution was for more than was due, credit not having been given the defendant for an account which he had against the plaintiff. The affidavit, Woodworth said in addition to its being supported by the deposition of another person, carried internal evidence of its truth. It was not natural to suppose that a man should pay, after an arrest, so large a sum, on account of the debt, under no kind of agreement, but leave himself open to an execution for the residue the very next moment. He, therefore, hoped the court would set aside the whole proceedings, as being in violation of every principle of good faith.
    
      Van Antwerp, contra,
    read a long affidavit by the plaintiff, denying the receipt of the money on any condition, and swearing to the justness of his execution; but the denial rested on his own testimony alone.
   Per Curiam.

This is an application to set aside the judgment, and all subsequent proceedings. The affidavits are very lengthy, and so far as they relate to merits, we put them totally out of view, for on that point they cannot be received, the plaintiff having been perfectly regular, according to the rules of this court. But the motion is made on the further ground of surprise. To this effect the defendant has sworn, and his testimony is corroborated by that of another witness to the same effect. On the other band may be opposed the positive denial of the plaintiff. If the weight of testimony be to decide, it will be found with the defendant. There has at least been a misunderstanding in this business. The defendant thought he paid his money that the suit might not go on, and therefore, did not make any defence. It is evident some great mistake has *been made; the plaintiff) however, is [*157] perfectly regular, and as each side may have thought himself right, the judgment and proceeedings must be set aside on payment of costs, pleading issuable, and taking notice of trial for the next circuit.

Judgment and proceedings set a side on terms. 
      
      
         Whether regular proceedings shall be set aside on merits has, in our practice, been vexata questio. It is certain that the rule of “putting merits totally out of view” on such an occasion was acknowledged more than once before the decision in the text, Edwards ads. M'Kinsiry, Col. Cas. 124, and even in the case of bail desiring to stand in the place of their principal. Lansing ads. Gorham, ibid. 116. Subsequent decisions seemed to confirm its strength, Beekman v. Franker, 3 Caines’ Rep. 95, by their very exceptions; as when in favor of an administratrix, Smith v. Nitchie, Caines’ Prac. 221, since reported 2 Johns. Cases, 287, when from the mistake of the attorney either as to the time of pleading, Russell v. Ball, Caines’ Prac. 221, or of the term in which the writ was returnable, Gardinier v. Crocker, 3 Caines’ Rep. 139, merits were allowed to relax, and, if strongly made out, to supersede the rule. Giles v. Caines, 3 Caines’ Rep. 107. What it now is, may perhaps be gathered, by observing that where there are merits, and a trial has not been lost, a regular default will be set aside on payment of costs. Jackson v. Stiles, 4 Johns. Rep. 486. Davenport v. Ferris, 6 Johns. Rep. 131. Even where a trial has been lost, and a writ of inquiry executed, if from a mistake on a doubtful point, Bennett v. Fuller, 4 Johns. Rep. 486, or in favor of administrators or executors, to prevent their being charged * honis propriis, Phillips v. Hawley, 6 Johns. Rep. 129. Fenton v. Garlick, ibid, 287, the above rule as to merits will not prevail. In what the merits consist ought, however, to be set forth in the affidavit on which the motion is made, Wilkes v. Hotchkiss, 5 Johns. Rep. 360, or stated as “being a good and substantial defence on the merits, as advised by counsel.” Cannon v. Titus, ibid. 355. See the observations on these words when used in opposing a reference, ante, p. 151, n. (b), and the regard to be had to merits as laid down in Caines’ Prac. 222. .
     