A petition by a defendant in a defaulted action to set aside the judgment by default and grant him a trial, on the ground that the judgment was obtained through the ignorance and mistake of the petitioner as to the time and mode of making his defence, must be accompanied with an affidavit of merits of defence, or by such proof as will satisfy the court of the existence of such merits. It is too late to come with such a petition a year after the judgment was obtained, and after the petitioner has been an unsuccessful applicant for the benefit of the poor debtor's act, when committed on the execution issued on such judgment, and after too a bill in equity has been filed by the judgment creditor against the voluntary assignee of the petitioner for an account of the assigned assets and for their application to the payment of the judgment.
There was no affidavit of merits of defence to the defaulted action, nor any proof of such merits accompanying the petition.
AMES, C.J.
The petitioner can hardly expect us to grant his application upon the supposition that a judgment obtained against him by default ought not stand, when he has not seen fit even to give us his own affidavit to the truth of the statement of defence made in his petition. It is very late, and not a little suspicions, to come with such a petition as this, a year after a judgment has been, as is alleged, obtained unjustly, and by mistake of the debtor as to the proper means of defence; and after the petitioner has been an unsuccessful applicant for the benefit of the poor debtor's act, which supposes the validity of the very judgment which he now seeks to set aside. In the mean time, too, the state of things has changed; the execution creditor having filed a bill in equity against the voluntary assignee of the debtor for an account and application of the assigned assets to the payment of his debt, — an expense from which he would have been saved if any diligence in applying for the relief now sought had been used by the petitioner. This petition looks very much like a new mode of defending against such a bill; and must be dismissed, with costs.