The facts disclosed in the answer of the administrators of Hunter were sufficient to warrant the court below in setting aside *Page 158 the order (entered according to the usual practice) for taking judgmentpro confesso against him, and receiving their answer. The complainant's petition, praying a reversal of that order, and that the answer of the administrators be suppressed, is disallowed and dismissed.
Justice to the complainant, however, requires that he should (205) have the benefit of the testimony taken without notice to Hunter, while the judgment pro confesso was in force against him — as during that period the complainant was under no legal obligation to give notice to him of the time and place of taking his depositions.
Let the cause be remanded with the following order and directions to the court below, viz.: That the answer of the defendants, administrators of Henry Hunter, stand according to the order made for receiving it; that the complainant have the benefit of the testimony taken without notice to Hunter, in his lifetime, saving all just exceptions thereto.