Wooster v. Woodhull

The Chancellor.

The' interference of the court, to relieve a party from the consequences of his default, must depend upon sound discretion, arising out of the circumstances of the case. There is no general and positive rule on the subject; and Lord Thurlozo observed, in one case, (Williams v. Thompson, 2 Bro. 279.,) that if a defendant comes in after a bill has been taken pro confesso, upon any *542 reasonable ground of indulgence, and pays costs, the court will attend to his application, if the delay has not been extravagantly long. If the indulgence be great and frequent, there is danger of abuse of the precedent for the purposes of delay. This objection struck Lord Hardwicke with much force in the case of Cunningham v. Cunningham ; (Amb. 89. Dickens, 145.;) and he directed precedents to be searched, on a similar application, where the defendant applied for a rehearing, two years after a decree, which, on his not appearing at the hearing, had been made absolute. He said it was a question on which'side the greatest inconvenience would Me; and he, finally, opened the cause in that case, on payment of the costs of the default, and of all subsequent proceedings. Several other cases were referred to by the counsel who made this motion, in which the party, whether plaintiff or defendant, who had made the default at the hearing, and who had, thereby, suffered his bill to be dismissed, or a decree to be made absolute against him, was relieved upon the usual terms, of payment of costs. (Robson v. Cranwell, Dickens, 61. Kemp v. Squire, Dickens, 131. Fry v. Prosser, Dickens, 298. Ferran v. Waite, Dickens, 782.)

I should have been inclined, under these authorities, to have let in the defendant upon terms ; but there is one fact in the case, that puts the inconvenience wholly on the other side, and shows, that the gross neglect of the defendant has deprived the plaintiffs, forever, of very material testimony to support the charge in their bill of the payment of the judgment. This question of payment involves the whole merit of the controversy, and, since the default, the principal witness in support of the bill has died. Had the defendant put in his answer according to the course and practice of the court, the testimony of this witness might have been procured. It is impossible, now, to relieve the defendant, without producing irretrievable injury to the plaintiffs. The inexcusable neglect of the defendant might, thus, be the very means of gaining his cause. Such a consequence can *543 not be endured; and the application to vacate the decree, and let him into defend, must be denied.

But as the decree was silent as to costs, they were not recoverable, and they have been taxed and taken by the plaintiffs in their own wrong. They must be refunded; but the plaintiffs are entitled to the costs of this motion; and such costs are to be first deducted out of the amount paid to the plaintiffs’ solicitor, and the balance only returned to the defendant.

Order accordingly,