Majority
Headnote
THIS was a motion for a new trial; but it was opposed on the ground that judgment having been entered, and no order obtained from a judge to stay proceedings, according to the fourth rule of January term, 1799, the defendant was now too late.The true construction of the 4th rule of January term, 1769, is,
First. That the notice of a motion, accompanied by a judge’s certificate is a substitute for the former practice of a rule to show cause, and, therefore, if the party neglects to obtain a certificate, the consequence is, that if, when the hearing is to come on, judgment he duly entered, he cannot be heard on the motion.—r We. will not hear an argument to set aside a verdict, default, or inquisition, after judgment didy entered-
Secondly. There is nothing in our rules to pre- ■ vent a party dissatisfied with the refusal of a judge to grant a certificate, to apply to the court. The defendant is not, therefore, strictly entitled to be heard, but as- there appears to have been a misconstruction of the rule, we will, in the present instance, open the cause and hear the motion.