Freeman v. Warren , 3 Barb. Ch. 635 ( 1847 )

The Chancellor.

The proceedings appear, by the affidavits, .tohave'been.regular-sofar as-concerns .Adam A. Nestle. The. affidavit^ pan «whichthe bill was taken as-confessed as to him, appears to be sufficient, and is in the usual form, dn additionto -that, Mr. Rice, in-his affidavit in opposition to‘this motion, states the particulars-of the service (if the noticempon •the defendants’ solicitor. It was owing to Adam A. Nestle’s own negligence that he did not, after lie had obtained his discharge under the bankrupt act, apply toll is solicitor and ascertain what was the situation of the suit against him, and whether it was necessary for him to plead his.discharge in bar of the further continuance of such suit. He has had an opportunity to set up Iiis discharge, as a technical defence; and having neglected to do so-the court ought not-to let him in to make a defence in which there are no merits. (Cross v. Hopson, 2 Caines' Rep. 102.) The application, as to him, must therefore be denied with costs.

The case of Jonas Nestle is entirely different. For.if ¡his answer is true, he has a good and meritorious defence. And I am also satisfied .his answer was -served; although fit does not appear to have ¡come-to the .-hands of the present-solicitors lor the complainant, or the former solicitors. It probably'was miscarried. But as (the .answer had been regularly served, ¡the ■ardor to,-takethe bill as confessed ¡against Jonas -Nestle wasirregular; although the decree itself, founded upon a due and proper notice of hearing, was technically regular.

The decree must therefore be so far opened as to allow Jonas Nestle to make a defence;, but without interfering with-the decree, so as to prevent the complainant from'-collecting; his debt and costs out of any property-of either of the other defendants. The solicitor of Jonas Nestle must serve-a new copy of his answer upon the solicitors of the complainants; and they must be at liberty to file a replication to that answer within the usual time fat replying. And when the cause is in readiness for hearing between the complainant, and Jonas Nestle, it is to be brought to a hearing, as to him, in the usual way; so that the court may .make such decree between him and the complainant as may be just. And as -between those parties neither is tti have costs as against the other upon this applicatiom