Bate v. M'Laughlin

Opinion of the court was delivered by Judge Logan. This was a bill with injunction to stay proceedings on a judgment at law, founded on a note for the payment of money. It will be unnecessary to set forth the equity alleged, as the only points presented proper for the determination of this court, relate to the filing of the answer. The defendant was a non-resident, against whom an order of publication had been obtained, and having failed to enter his appearance agreeably thereto, his answer at a subsequent term was produced, and with the permission of the court, filed in the absence of the complainant and his counsel. At the next term, the complainant’s attorney moved to Rescind the order permitting the answer to be filed, on the ground that security for performing the decree which might be pronounced, had not been required of the defendant. And again, upon the hearing of the cause, an objection Was taken to the reading of the answer, because, as alledg-ed by the complainant, it did not appear to have been regularly sworn to. Neither of the points ought, in the opinion of this court, to have prevailed. This is not a case of that description, in which a defendant is required, by the act of assembly, to give security: nor in which, by the rules of equity, he ought to be ruled to security. And as to the second objection, even had it been well founded if taken in proper time, it ought not, according to the decision in the case of Severns vs. Hill, 3 Bibb, 241, to be sustained upon the final hearing of the cause. The decree must, therefore, be affirmed with cost and damages.