Oudenarde v. Van Bergen — 1 Cole. & Cai. Cas. 53

Majority

p. 53

Oudenarde v. Van Bergen.

Headnote

THE plaintiff had filed his declaration in vacation; and the rule to plead having expired, he entered interlocutory judgment the last term, without having first entered a default.

Spencer for the defendant,

moved to set aside this judgment, on the ground that no default had previously been entered.

On the last day of term, Mr. Justice Lansing delivered the unanimous opinion of the court.

<£ When this question was presented in the first in- <£ stance, I did suppose that the entry of the default i£ could not, under the existing rule, have any other ££ effect, than merely to preclude the opposite party from pleading; and that the plaintiff might waive “ the entry of the default, and enter a rule for judg- ££ ment.

££ Upon further reflection on the subject, and after “ carefully examining the eighth rule entered in April <£ term, 1796, it appears to me to be the better con- <£ struction, that the entry of the default is indispensa- <£ ble to entitle the plaintiff to his judgment; the ex- 11 pression being, ‘ That the default being duly enter-

p. 54

“ ed, the party who shall have had it entered, shall not ££ be held afterwards to accept a declaration or answer, “ as the default shall happen to be, and may at any “ time after four days in term shall have intervened “ thereafter, have a rule for such judgment as is to “ be rendered by law, by reason of the default.’ This 11 imposes it on the party entering the default to “ file the necessary proofs to evince its regularity ; <£ and if any subsequent question arises on that subject, a resort to those proofs affords a determihate 46 test.

££ We are all of opinion that the interlocutory judg- “ ment be set aside.”