Hartwell v. White
New York Court of Chancery
The bill in this case was filed to foreclose a mortgage, and after a decree had been obtained, but before the sale of the mortgaged premises, White, one of the defendants against whom the bill had been taken as confessed as an absentee, applied to be let in to make a defence and to stay the proceedings upon the decree in the meantime; and in his petition he swore to a good defence to the suit and stated what that defence was.
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The bill in this case was filed to foreclose a mortgage, and after a decree had been obtained, but before the sale of the mortgaged premises, White, one of the defendants against whom the bill had been taken as confessed as an absentee, applied to be let in to make a defence and to stay the proceedings upon the decree in the meantime; and in his petition he swore to a good defence to the suit and stated what that defence was. On the part of the complainant, affidavits Avere produced to show that the absentee had no such defence as was stated in his petition.
1Opinion of the Court
The Chancellor
said the court could not try upon affidavits the validity of the defence stated in the petition j and that the affidavits on the part of the complainant could *369only be received for the purpose of regulating the discretion of the court as to costs, as the absentee had a right to come in and defend upon payment of such costs as the court should deem reasonable. (8 Paige’s Rep. 506.) He said that if the absentee did not swear to a defence upon the merits, the court would require him to pay the costs already accrued, subsequent to the time for his appearance, and to give security to…
2Cited by2 opinions
- Marvin v. BrandyNew York Supreme Court · 1890
- New York Life Insurance Co. v. Supervisors of New YorkThe Superior Court of New York City · 1855