Clinton v. Porter — 2 Cai. 176

Majority

p. 176

Clinton against Porter.

Headnote

If on demand of oyer, that given he different from that set out, the plaintiff cannot, without rule or notice after service of a true oyer, sign judgment by default. If it be done the court will set it aside, with costs.

In debt on a bond, the plaintiff set out the real oyer of it. The defendant then demanded oyer, which was given to him variant from that set out, on which the defendant pleaded non est factum. The plaintiff then, without any rule or notice, served a fresh oyer, setting out the bond and condition truly; twenty days having elapsed, he signed judgment by default.

Mmott, on affidavit disclosing the above facts, moved to set aside the default and subsequent proceedings.

Van Vechten, contra,

insisted that the case was within the eighth rulé of April, 1796, which allows of amending declarations, &c., and that all permitted by that rule might be done of course.

Take the effect of your motion with costs.^[1]

Motion granted.

[1] [1] Where the oyer varies from the instrument declared on, the defendant may set it forth in his plea and demur, or he may, without setting it forth, plead non est factum, and avail himself of the variance at the trial. Ehle v. Purdy, 6 Wend. 629 . After twelve days demand of oyer by the plaintiff of a release pleaded by the defendant, he may treat the plea as a nullity and onter the defendant’s default. Field v. Goodman, 4 Wend. 214 . A small difference between the oyer of a bond and the declaration is not regarded. Henry v. Brown, 19 J. R. 49. The defendant has the same time to plead after delivery as at the time of demand. Mu'holand v. Van Tine, 8 Cow. 132 ; see Varick v. Bodine, 3 Hill, 444 .