Hartwell v. White , 1841 N.Y. LEXIS 519 ( 1841 )

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 only 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 pay the future costs of the suit in case he did not succeed in his defence. But if he swore to a good defence and stated what it was, and the complainant produced affidavits to show that no such defence existed, the court in its discretion might require the absentee to give security to pay the costs which had already accrued and the costs of the future litigation, in case he should fail in establishing a defence to the suit.