case William BENSON Appellant John VERNON Respondent that November affidavit  of a defendant illness and incapacity to put in a answer be admissible  evidence on which to ground a application to discharge process of contempt and  receive the answer though the suit be institute in Ireland and the affidavit  swear in England and though a decree have take pro acknowledged admitted fact  in consequence of the contempt the end of this appeal be to set aside some  proceed for irregularity which no way affect the merit of the cause it will be  sufficient to state those proceed without enter minutely into the history of  the dispute between the party on the that of November the appellant as  mortgagee of a estate in Ireland file his bill in the court of exchequer in  that kingdom against the respondent pray payment of the principal money and  interest due on his security or that the equity of redemption may be foreclose  on the that of February follow the respondent put in his answer brown to this  bill and thereby impeach the appellant security as fraudulent and without  consideration and on the that of April he file his cross bill against the  appellant pray that those security may be set aside and deliver up to be  cancel the appellant residence be in England a commission be on the that of  July sue out for take his answer returnable without delay but in the month of  September follow and before the answer be take the appellant be seize with a  disorder in his mind and continue very ill and incapable of attend to any  business till about Christmas in the meantime the respondent proceed in his  cross cause and sue out the usual process of contempt to a sequestration  procure the original bill to be dismiss for want of prosecution and on the  that June obtain a order that the cross cause shall be set down to be hear on  the sequestration and the bill take pro acknowledged admitted fact the cause  be accord hear on the that of July and a decree pronounce against the  appellant set aside his several security and order they to be deliver up and  on the that of the same month this decree accord to the practice of the Irish  court of equity be make up and enrol with cost as soon as the appellant begin  to be in any degree capable of look into his affair he be apprise of what have  be do during his illness and on the that of December the court be move on his  behalf to refer the process of contempt brown er p and the subsequent proceed  for irregularity and a order be accord make for that purpose on the that of  June the remembrancer make his report and as to the irregularity insist on  videlicet that where a commission issue returnable without delay it be  incumbent on the plaintiff attorney to obtain and serve a rule or order on the  defendant to return such commission by a day certain or otherwise that the  plaintiff may be at liberty to issue process report that such motion have be  make as cautionary by plaintiff but that the do thereof be not declare  necessary by the write rule of the court and that defendant have move for time  to return commission for take answer in England that as to the proceed in this  cause he be of opinion the same have be regular but if it be doubtful yet that  no advantage ought to be take of any irregularity after a hear and a decree  enrol pen these proceed the appellant answer be prepare and on the that of may  the same be take by virtue of the commission and on the that of June follow it  be deliver on oath into the remembrancer office in order to be file but the  respondent have on that day obtain a brown order for confirm the report  absolute the answer can not be file the appellant therefore on the that of  July move the court to have the process of contempt and the decree obtain on  the sequestration set aside and that the answer may be receive and on this  motion the appellant counsel insist on the abovementioned instance of  irregularity and offer a certificate of the appellant incapacity sign by dr  mead his physician and Mr gataker his apothecary and a affidavit to verify the  sign thereof but the respondent counsel insist that no notice of motion have  be give for set aside the report and the order for confirm it the court will  make no order upon this application the respondent counsel have object to the  read of the above certificate the appellant afterward procure affidavit of his  insanity and incapacity to transact business from the month of September till  about Christmas except at very short interval when it be both improper and  dangerous for he to be trouble with business which affidavit be swear before  Mr baron Reynolds in England on the d of November by dr mead dr Monro Mr  gataker and several other person and immediate transmit they to Ireland in  order to ground a further application to the court there and accord on the  that of December a motion be make that the process of contempt the decree  obtain on the sequestration and the remembrancer report may be set aside that  the appellant answer may be receive and that he may be at liberty to proceed  in his original cause but the court think proper to order that the appellant  shall be at liberty to make the same motion on the first day of the then next  Hilary term and that in the meantime all thing shall remain as they then be on  the that of February this motion be renew when the appellant offer to pay the  respondent his whole cost but the respondent counsel object to the affidavit  be read the motion be adjourn to the that when it be again repeat the court  direct the affidavit to be read but the respondent have produce and read a  affidavit to prove a answer put in by the appellant on the that of may to a  bill of revivor in the court of chancery of England which in one of his short  lucid interval he have swear and which be very short and require neither the  time pain or capacity that be necessary for answer the respondent bill consist  of above sheet of paper the court adjourn the motion for far consideration  till the that of February when two of the three baron be of opinion that the  decree be enrol can not be set aside but the other baron be of opinion that  upon payment of all the cost and give security to abide the decree the  appellant ought to have liberty to file his brown answer and that the  enrolment of the decree shall be set aside the court however be thus divide no  order be make upon the motion the appellant therefore as his last resource  bring the present appeal and on his behalf it be contend t clarke I Talbot  that the process upon which the decree be find have be issue irregular and  without a sufficient foundation the appellant solicitor have never be serve  with any rule or order to return the commission which have be usual do in case  of this kind and be agreeable brown er p to reason and justice in order to  prevent any undue surprise upon the adverse party that judgement obtain by  default even in court of law be frequent though strict regular set aside on  reasonable term if it appear that the party against who they have be give have  either by surprise or accident lose the opportunity of try the merit of his  cause and in no case can this power of the court with more reason be exercise  than where as in the present case the regularity of the process be admit to be  at least doubtful and disputable and where it appear from the nature and  circumstance of the case as well as from proper proof by affidavit that the  default can not proceed from any desire to delay or evade the justice of the  court but arise from the absolute disability of the appellant to make his  defence occasion by the act of God and the undue advantage which the  respondent take of that disability that the affidavit of the appellant  incapacity swear by person who attend he in his disorder be the only proper  evidence of it and prove clear the impossibility of his put in his answer and  consequent clear he from any contempt of the court upon which alone such a  decree can with any colour of justice be find that the enrolment of a decree  be a mere ministerial act can take away the justification of the court in  which it be enrol to examine into the ground and foundation upon which it be  obtain and as the court have clear a justification to set aside such a decree  for irregularity after enrolment so may it likewise set it aside for any other  cause collateral to what appear upon the record itself which be a just excuse  to the party for not obey the process upon which the desire be find since  without such power of examination and redress in the court below as well as on  a appeal in the last resort a decree by default however irregular and unjust  obtain will by be immediate enrol become a final judgement of a inferior court  without any possibility of reversal although there be no wilful default in the  party against who it be pronounce that permit the appellant to put in his  answer to the respondent cross bill and give he liberty to proceed in his  original suit can be of no prejudice to the respondent who can lose nothing by  the delay and have all the profit which he can derive from the event of his  suit by its be depend the cross bill be only brown for relief against a demand  which the appellant endeavour to establish on the other side it be insist d  rider W Murray that the court below do wrong in permit the affidavit to be  read as they have no relation to any irregularity tend to invalidate a decree  enrol against which nothing extrinsic of the decree can be receive and be  swear before a judge in another country who have neither jurisdiction or  cognizance in the court of exchequer or kingdom of Ireland that a decree  obtain upon process of contempt be as absolute as any other and must be treat  in the same manner and the decree in question be enrol if it be regular obtain  be final and conclusive and can not be open or overturn upon motion the  enrolment be the final judgement of the court and therefore the only method of  get rid of it must be by bill of review and reversal and that both the decree  and the enrolment of it be regular in the present case appear in the clear and  full manner possible by the remembrancer report and that report have be  absolute confirm without any objection or exception thereto amount in the  strong manner to a acquiescence and admission on the part of the appellant  that the proceed be regular consequent he can not now be admit to impeach the  report by way of appeal and if not then the report and all the process lead to  it must stand the whole be report regular so that the drift of the present  application be to set aside the decree for irregularity after it have be  determine by the court and admit by the party that there be no irregularity  neither be there any fraud or surprise upon the appellant in obtain this  decree on the contrary the process be issue with more caution and indulgence  to he than be necessary and with full and regular notice to his attorney that  no enrolment of a decree or judgement at law can be set aside after it be  enter up except for fraud only and that fraud relative to the act of enrolment  itself and if the court shall open a enrolment on any other suggestion than  fraud it will prove a great inlet to the multiplicity of suit have great  influence on the practice of all court of equity and render all property so  far as the same depend on the sanction of decree and judgement extreme  precarious and uncertain that the appellant lunacy or pretend incapacity be no  reason at all on which to ground the relief he now pray even if brown er p the  truth of the fact be indisputable clear for neither the court or the  respondent be at all apprise of it nor be any indulgence ask on that account  or any objection make during the whole of the proceed nor until five month  after the decree and the enrolment thereof but there be real no foundation  from the fact itself for grant this relief for it be not pretend by the  affidavit that the appellant disorder come upon he till the that of September  and it appear that he be serve with the subpoena on the that of march precede  and sue out a commission for take his brown answer on the that of July so that  he have above half a year after the subpoena serve and near four month after  his sue out the commission to put in his answer before the time of his pretend  insanity all the affidavit produce on the appellant behalf allow he to have  have interval of sanity during which he may have put in a answer and though  these interval be say to be short yet that be a very uncertain mode of  expression and the court can not know with certainty the continuance of they  but the aid attempt to be draw from these affidavit be at once remove by a act  of the appellant himself during the time that they speak of most notorious  insanity for on the that of may when the appellant be allege to have be insane  and before the issue of the sergeant at arm in this cause he swear a answer to  a bill in the court of chancery of England touch the same property that be in  question in this cause and which answer be evidence of the high nature and  whole invalidate the consequence endeavour to be draw from these affidavit and  it be certain too much for the court to say that the appellant who it appear  have interval long enough to answer the English bill have not interval long  enough to put in his answer to the Irish bill or to make a short affidavit to  stop process for if either he or his agent have make a affidavit of his not be  capable the court on a proper application will have enlarge the time for  answer the appellant himself have not swear any affidavit of his be whole  ignorant of these proceed be carry on against he or of his be incapable  notwithstanding his lucid interval of put in his answer and he sure be not so  far disable but that he may have apply by his agent to stop the process that  the answer now desire to be receive be take under a commission which issue on  the that of July and yet the answer be not swear till the that of may a year  and three quarter after issue the commission and consequent be so out of date  that no answer by any rule or practice ought to be receive thereon upon the  whole as the set aside this decree under pretence of the appellant insanity  may be attend with very extensive and mischievous consequence and as this case  be strip of all the favourable and compassionate consequence which the  appellant will represent though if it be not it be much better that one  private man shall suffer than a injury shall be do to the public it be hope  that the appeal will be dismiss with cost but after hear counsel on this  appeal it be order and adjudge jour vol p that the order of the that of  February shall be reverse and it be refer to the remembrancer of the say court  of exchequer to tax the cost of the order of dismission of the appellant  original bill and any cost consequential thereto and also the cost of the  appellant contempt in the cross cause and of all the proceed in that brown  cause from the time of issue the first process of contempt and that upon  payment thereof by the appellant to the respondent within a fortnight after  the remembrancer shall have make his report of such taxation and also upon the  appellant give security in such manner as the court shall direct to answer  cost in the original and cross cause in case cost shall be decree against he  the sequestration shall be discharge and the enrolment of the decree vacate  and the decree set aside and that the order of the that of may for dismiss the  original bill shall also be discharge and that the say original bill shall be  retain and the appellant admit to put in his answer in the cross cause and  that the court shall proceed in both cause accord to the course of the court  and that the appellant shall speed his original cause and it be further order  that the say court of exchequer shall give all proper direction for carry this  order into execution brown er p