The propriety of opening the default, so as to let the defendant in to answer the bill, is not disputed. The only question is whether, in granting him the favor, as it is called, the court ought to impose it as a condition that he shall not attempt to avail himself of the statute of limitations as a defence ? I find no case where, without some special circumstances, which do not exist in the present case, the court of chancery has undertaken to impose such a condition upon a defendant. If the complainants could show that, by reason of the delay in not appearing and answering the bill, the complainants have been or are likely to be deprived of the means of rebutting the defence of the statute or will be placed in any worse condition by the defendant’s now being permitted to set up such a defence, than they would have been in had the answer containing it been filed in due season, the court would take care that no such consequence should result. But the complainants do not allege that they are likely to be prejudiced in that way.
It seems that the defendant feels himself under a moral obligation not to avail himself of the statute of limitations for his protection ; if so, leaving him at liberty on that subject can do the complainants no harm ; and it would be to distrust the high sense of honor and justice which he appears to possess, as disclosed by the affidavit of Mr. Monroe, if the court were to lay him under any restraint in answering the bill as to any matter of defence which he may think proper to set up. Again, if the complainants have evidence to repel a defence under the statute, as it would seem they have, they will have an opportunity of producing it should the defence be resorted to.
Order, that the default be set aside ; and that the defendant have four months to answer, on payment of costs.