Arden v. Rice — 1 Cole. & Cai. Cas. 312

p. 312

Richard D. Arden and Epiphalet W. Close v. Randal Rice, Consider White, and Henry Townsend.

Headnote

THIS cause had been noticed by the plaintiffs for > argument, at the last term, on a general demurrer filed by the defendants to the declaration; the court had, on the statement of the plaintiffs’ counsel that the demurrer was merely for delay, overruled it, and granted a rule for judgment; the counsel pledged himself to open.the rule any day on an affidavit of arood cause of demurrer, or of merits. On service of the rule for judgment, the defendants gave a cognovit, on which the plaintiff entered up his judgment in the last vacation.

Foot

moved to set aside the judgment, contending that it could not be entered but in term.

Some little variance of opinion existing on the bench, .respecting the practice on this point, it stood

p. 313

over till the last day of term, when the court thus decided :

By the 8th rule of April 1796, judgment, after a default entered, may be entered at any time after 4 days in term have intervened. The rule -of July term, 1796, ordering all rules for judgment to be entered in term, and not in vacation, was abolished in April term, 1799, and restored the first rule. There is no good reason why 4 days in term should be given in this case to the defendants, any more than on a warrant of attorney to confess judgment. The defendants take nothing by their motion.

dissented, on the ground that the practice had been different.