Packard v. Hill

In an ordinary case of an affidavit of merits, and an application and offers like these to the plaintiffs’ attorney, we should doubtless grant a motion to set aside a default without costs subsequent to the offer; but this is not that case. The affidavit of merits is not made by the defendant; and there are some other circumstances which perhaps required the plaintiffs’ attorney, out of a just regard to the rights of his clients, to meet this motion here. Under the circumstances, the usual terms must be imposed, which are payment of all costs including those of opposing this motion. The defendant must also plead issuably, instanter, and take four days notice of trial, for the circuit now sitting in the city of New York.

Rule accordingly.