Majority
p. 103Gardinier, Gentleman, one, &c. against Buel.
Headnote
A notice to declare, plead, &c., need not specify “or that the default wlh bs entered,” but may say generally “ or judgment."This was an application to set aside the judgment of non-pros entered in this suit, on an affidavit by the plaintiff, stating, that on the 6th of J une last, he was served with a copy of a bill of costs and notice of taxation, from whence he concluded a judgment of nonpros had been entered against him, but if any had been so entered it was without notice of any intended motion for that purpose, except what was derived from a notice served on him on the 24th of January last, of the entry of a rule in the common rule book of the clerk of this court, requiring him to declare before the end of February term then next, “ or that judgment of nonpros would be entered,”
* Williams, on behalf of the plaintiff.
The rule in this-cause ought to have been “ that the plaintiff
p. 104
declare or his default be entered,” and on such default, judgment of nonpros would have been regular. Whenever an act is to be done by one party, on non-performance of which he will be in default, and the other party entitled to an advantage in consequence of the omission, the rule ought to express that “ unless, &c. his default will be entered.” On such a rule the next step is the entry of the default; and then follows the entry of the judgment; for the plaintiff is not bcur.d to declare till called on regularly. 3 Burr. 1452.[1] Cole. das. Prac. 47, 48.[2]
Woodworth (Attorney-Gen eral)
read an affidavit of the defendant’s attorney, contra, by which it appeared that in July, 1803, he sent by the mail a notice of his being retained in that cause; that notice of a declaration being filed had never been given; that on the 10th of December following, a rule for judgment of nonpros was entered in the common rule book, of which notice was given on the 24th of January last; that of this notice an affidavit was made and filed in the clerk’s office on the 11th of May last, on which the plaintiff’s default was entered, and four days after, judgment of nonpros entered. This, Mr. Attorney contended, was the regular practice, and that the default, being only a consequence and legal effect of the neglect of the party, needed not to be mentioned. Inserting it as a mere matter of surplusage not required by the rules of this court. Besides the want of notice of filing a declaration is decisive against the application according to the determinations- of this court.
The defendant is regular in every respect. The plaintiff can take nothing by his motion.
Motion denied