Bank of Michigan v. Williams

1 Harr. Ch. 219

• Court: Michigan Court of Chancery
• Decided: October 6, 1840
• Status: Published

Opinion

The Chancellor.

The plea in this case, alledges gener-

ally, that another suit is pending in the supreme court for the same causo and for the like relief. This is insufficient. The plea should set forth the general character and objects of the former suit, and the relief prayed. Story’s Eq. PL, 570; 3 Atk., 590. This is not done here, and the plea must be overruled as insufficient.

An order, pro confesso, was entered October 27, and H. T. Backus, solicitor for complainant, filed an affidavit, November 5, and moved to set aside the order, pro confesso.

He states in his affidavit, that in the order adjudging the plea to be insufficient, defendant was allowed, with leave, to file his answer; that ho supposed that he had forty days within which to file his answer, and so advised the defendant; that “as he believes, the said defendant has to said bill of complaint, a good defence, to a part at least, of the amount claimed therein by way of offset,” and that he had been unable to prepare the answer, &c.

The Chancellor denied the motion on the ground that the affidavit was made by the solicitor, and no reason was shown, why it was not made by the party defendant himself.

(1.)

The affidavit of the solicitor showing a meritorious defence, and the nature thereof, is not sufficient, unless he is himself acquainted with the facts; and even then, a sufficient excuse must be shown for not producing the affidavit or sworn answer of the defendant. Hunt vb. Wallis, 6 Paige, 372.