¶1The application is made to the court to set aside and vacate the order of pro eonfesso obtained in this case, under the 29th rule of practice, on the instance side of the district court. This rule has thé force of a statute, having been established for the government of the court by the act of congress of August, 1842. There having been no final hearing and decree, it is within the discretion of the court to set aside the default, treating it as a mere order, which may be vacated on a sufficient showing by the defendant, and “upon the payment of all costs of the suit, up to the time of opening the default.” The language of the rule is unequivocal and absolute, and must control the action of the court. All costs must be paid, if the discretion of the court is exercised in granting the request of the respondent
¶2The sufficiency of the showing embraces two considerations essential to the vacation of the order and granting leave to answer. 1st. The respondent must satisfactorily account for his laches: and 2d, exhibit either by answer or affidavit, a meritorious defence. The libel was filed on the 29th of September, 1855. The vessel was attached on the 11th of October following, and default entered in November. A motion was made to set aside the default on the 12th of November, on the exhibition of an answer, professing ignorance in regard to the facts of the collision, and specially setting forth a plea to the jurisdiction of the court. It is proper to state, in this relation, that at a session of the court, on the first week of November, the respondent, on making his motion to vacate the order pro eonfesso, informed the court that the design was simply to raise the question of jurisdiction, and by the direction of the court, presented the answer as a basis for his motion, which the court ordered on file. The court will not, therefore, under these circumstances, consider the present motion as coming within the ruling by Lord Kenyon, in Greatheard v. Bromley, 7 Term R. 455.
¶3The original motion stood unargued until the 4th of February, 1850, neither party pressing its decision; and on the first day of the March term, was denied by the court. Mr. Howard, in his affidavit, states “that he was employed as counsel in October, but was not placed in possession of the facts of the collision, so as to prepare the answer, until the first week in March; and then, for the first time, they were communicated to him by Captain Bancroft, who commanded the propeller at the time of the collision.” These circumstances, with the further fact that the respondent was a foreign transportation company, whose agent here was not apprised of the facts attending the alleged collision until March, satisfactorily accounts for the laches. In an instance court, the time in which the first motion was held, under the mutual amicable understanding of counsel, seems too protracted, but the delay is sufficiently explained. But the affidavit of Bancroft, on which the court must rely, does not disclose a meritorious defence.
¶4*855The libel charges a collision, and damages consequent. The collision is not denied, but fully conceded by the affiant, who states that “the stem of the propeller collided with the stem of the schooner, breaking her taffrail and bruising her counter.’’ The opinion of the affiant, that this collision was not occasioned by the negligent conduct of the captain and his crew, and was an unavoidable accident, is not the assertion of a fact on which an indictment for perjury could be predicated. The affidavit is more specific as to the damages sustained — averring that they did not exceed $50 — but, as to this question, it can be settled under the 44th rule of the court, with as much accuracy, and on proofs by both parties; and the ends of justice as certainly attained, as if the court should now open the default, and permit an answer according to the affidavit of Bancroft, to be filed. The report of the commissioner, when confirmed by the court, will constitute the decree. Motion denied.