1837. Hunt v. Wallis. order as drawn up by the other party corrected by inserting a proper clause on that subject. And he could not by drawing up and appealing from an order which the vice chancellor had never made or authorized to be entered, compel this court to hear and decide such an appeal, or deprive the vice chancellor of the power of expunging from the records of his court such an unauthorized order. The defendants have also adopted the proper course to test the correctness of the proceedings of the vice chancellor with respect to that order, by this application to dismiss the appeal from the supposed order which is no longer in existence. The appeal from the order entered by the defendants' solicitor depends upon principles somewhat different. As the defendants themselves had caused that order to be drawn up and entered, and had served a certified copy of it upon the adverse party, it does not lie with them to say that the appeal from the order thus entered was irregular; although the order did not contain all the directions which the vice chancellor intended should be inserted therein. But the vice chancellor himself had a right to direct the order to be corrected, and to give the complainant the benefit of that part of the decision which was in his favor, so as to render it unnecessary for him to go on with the appeal if the neglect to insert such a provision was the only ground of complaint. After the correction was made, therefore the complainant was at liberty either to abandon the appeal or to consider it as applying to the order as corrected, which is now the only order in existence. The complainant having determined to proceed with the appeal, it is to be considered as an appeal from the order of the 21st of February as now correctly entered on the records of the court before the vice chancellor. The application to dismiss this appeal must therefore be denied. And this court will now proceed to examine the order appealed from, and affirm or reverse it upon the merits. From what has been before said, it will be seen that the vice chancellor was right in refusing to give to the complainant the costs of a useless application, to set aside the chamber order for further time to answer, which the appellant's solicitor had himself before that time considered and treated as a nullity. That part of the order appealed from must, for that reason be affirmed, even if an appeal would lie from the decision of a vice chancellor, upon the mere question of interlocutory costs which are in the discretion of the court, as to which the contrary is now settled. (See Winslow v. Collins, 3 Paige's Rep. 88.) The chamber order in this case being absolutely void and inoperative, the order to take the bill as confessed was perfectly regular. It is evident, therefore, that the complainant was entitled to the full benefit of that order, unless the defendants made out such a case as to authorize them to be let in to defend, according to the course and practice of the court. I do not think either of the defendants made out a case entitling them to the relief which was granted by this order. If there was a good defence to the suit upon the merits, the defendant who had such a defence to make was the proper person to state upon oath that such a meritorious defence existed, and to show what that defence was. The affidavit of the solicitor is not sufficient unless he is himself acquainted with the facts constituting the defence; and even in that case a sufficient excuse must be shown for not producing the affidavit or sworn answer of the defendant. Besides it is the settled practice of this court not, to set aside a regular order to take a bill as confessed, in a foreclosure suit or in any other case where the defendant has any interest or inducement to delay the proceedings, upon a simple affidavit of merits, although an excuse is given for his default. But in such cases the defendant must either produce the sworn answer which he proposes to put in, so that the court may see that he has merits, or must, in his petition or affidavit, state the nature of his defence, and his belief in the truth of the matters constituting such defence, so far at least as to enable the court to see that injustice will probably be done if the order to take the bill as confessed is permitted to stand. The only one of the defendants in this case who has made an affidavit does not pretend that he has any defence; although he says he advised one of his co-defendants VOL. VI. 48 1837. Hunt V. Wallis. 1837. Hunt V. Wallis. to put in an answer, as he had a good defence. The order As the defendants have succeeded in their application to dismiss the one appeal, but have failed as to the other, neither party is to have costs upon the motion to dismiss. The whole directions in this court are to be embraced in one order, and the proceedings are to be remitted to the vice chancellor. GRAVES US. MAGUIRE and others. A certificate of probable cause for appealing from an interlocutory order of a vice chancellor, when given by him for the purpose of staying the proceedings in conformity to the provisions of the 116th rule, is a mere chamber proceeding, like the approval of the sureties in an appeal bond, and cannot be vacated by the court below. The certificate of probable cause, upon an appeal from an interlocutory order of a vice chancellor, will not stay proceedings which would not be stayed upon a similar appeal from an interlocutory order of the chancellor. Such certificate, therefore, will not deprive the respondent of the right to apply for security for the debt, &c. as a condition of the further stay of proceedings. Neither will it have the effect to restore an injunction which is dissolved by the order appealed from, or suspend the operation of an injunction granted by such order. An injunction had been granted in this cause, restraining the defendant Maguire from selling or incumbering certain leasehold premises upon which the complainant claimed to have an equitable mortgage, and also restraining Maguire from receiving certain insurance monies from one of the other defendants, which monies had become payable in consequence of the loss of the buildings upon the premises. Maguire upon the coming in of his answer moved to dissolve the injunction; and the vice chancellor dissolved it so far as it restrained Maguire from receiving and the insurance company from paying the amount due upon the policy. From this part of the decision of the vice chancellor, the complainant appealed; and upon an application to the vice chancellor, athis chambers, he obtained a certificate of probable cause for appealing, &c. according to the provisions of the 116th rule. The solicitor of Maguire thereupon gave notice to the complainant's solicitor of an application to the vice chancellor's court for an order to vacate and set aside the certificate, with costs; which order was afterwards obtained ex parte and entered with the clerk-no one appearing to oppose. The complainant's solicitor, upon an affidavit showing an excuse for not appearing to oppose the last application, afterwards applied to the vice chancellor and obtained an order ex 1837. Graves V. Maguire. March 21. 1837. Graves V. Maguire. parte, to suspend the operation of the order vacating the certificate, until a motion could be made, upon due notice, to vacate the last mentioned order. The vice chancellor, upon hearing of the parties, afterwards opened the order vacating the certificate, and permitted the complainant to come in and oppose the original application of Maguire for an order. And upon hearing the parties thereon, he denied the application to vacate the certificate, but without costs. From this last decision, as well as from the two previous orders of the vice chancellor, the defendant Maguire appealed; but before the hearing of such appeal, the original decision of the vice chancellor, dissolving the injunction as to the insurance money and retaining it as to the residue of the matters embraced therein, had been affirmed by the chancellor. W. Silliman, for the appellant. C. Edwards, for the respondents. THE CHANCELLOR. The whole of the proceedings to I which this appeal relates appear to have been useless and unnecessary, as well as the appeal itself. And the only erroneous proceeding which required correction was the order of the 6th of February, vacating the vice chancellor's certificate of probable cause with costs. Even that would have been no injury to the complainant if it had not charged him with the payment of the costs of the application, as it was in this case of no consequence to either party whether the certificate was vacated or remained in full force. The sixty-first section of the title of the revised statutes relative to the court of chancery, (2 R. S. 178,) authorizes the chancellor, by general rules, to prescribe in what cases, to what extent, and on what terms, orders and decrees made by a vice chancellor shall be suspended or affected by an appeal. In pursuance of this authority the 116th rule adopts the statutory regulations as to the stay of proceedings upon appeals from the chancellor to the court for the |