Majority
p. 10*Griswold and another against Stoughton. moved to set it aside, on an affidavit stating • that no rules had been entered, either for interlocutory judgment, or for the clerk to assess damages on the note, offering at the same time to pay costs and put in special bail. The proceedings are regular to the default ; the affidavit states no excuse for that; and though
Headnote
If a default be regularly entered, and no excuse shown how it was incurred though the subsequent proceedings be set aside for irregularity, the default will stand, and plaintiff may perfect his judgment.Though a default has been regularly entered, a rule for judgment is necessary, so that the clerk assess
Assumpsit on a promissory note. The plaintiffs had proceeded under the statute, by filing common bail for the defendant, and had affixed the declaration with the demand oí a plea in the clerk’s office, without service ón the defendant, who lives in the city of New York.
Judgment by default having been obtained,
Pendleton
Biggs, contra.
p. 11the subsequent steps are not according to strict practice, the defendant being in default, and that default regularly entered, is not entitled to favor. The utmost, therefore, the court will do, is to vacate the proceedings from the default.
As the default is not accounted for by the affidavit, it is unimpeached, and therefore must stand: but as the subsequent proceedings are irregular, they must be set a side, with the usual liberty, however, for the plaintiffs to perfect their judgment this term, if they can.
Proceedings subsequent to the default set aside.