Hoxie v. Scott

remarked that according to his notions of the practice, the complainant had been wrong in these particulars :

1. He had supposed that in any order to answer, the defendant had the whole of the time specified in such order to put in his answer; and that if an answer was put in and served at any time during the last day mentioned in such order, it would be sufficient; and that consequently the solicitor for the complainant could not, with propriety, make an affidavit *459upon the last day in which an answer could be served, even though it should be made after nine o’clock in the evening,upon which an order could be properly founded to take the bill as confessed. The affidavit in this case was consequently irregular; and it makes no difference that this order to answer was upon the overruling of a demurrer under the 49 rule, extended by stipulation of the parties. The defendants had here, as in other cases, the whole of the extended time to put in his answer and pay the costs, and the complainant’s solicitor could not properly make his affidavit until after the expiration of the last day to answer.

2. The defendant has a right to serve his answer at any time before the order to take the bill as confessed against him is actually entered. In this case the answer was served and the costs paid on the 21st December, and the order to take the bill as confessed against him for want of an answer, was not entered until the 22d December.

This would produce some inconvenience to persons living at a distance from the clerk’s office, but the Vice Chancellor understood that this was the settled rule, and had so practised upon it, and understood that others had so practised, both in this court and the Supreme Court. Neither in this aspect does it make any difference that this order to answer was upon the overruling of a demurrer. The defendant had here, as in other cases, the whole time to answer until his default was regularly and actually entered. Here his answer was served and costs paid before the default was actually entered.

3. In any event the complainant’s solicitor should, when he returned the answer to (he defendants’ soli*460eitor, have also, if he did not intend to recognize it as an answer, have returned the costs of the demurrer paid to him upon service of the answer. This would have left both parties where they were before the service of a copy of the answer. The complainant’s solicitor neglected to do this. He returned the answer but retained the costs accompanying its service. This cannot be tolerated. There is no equality or equity in this, and the Vice Chancellor decided at once, that the order to take the complinant’s bill as confessed should be set aside as irregular, with $10 costs to the complainant.