Woodward v. Quackenbos — 1 Cole. Cas. 120

Majority

p. 120

Woodward ads. Quackenbos.

Headnote

Ejectment, IT appeared that the plaintiff’s attorney, at the time of delivering a new declaration, after the consent rules were exchanged, not having received a plea, entered a Rule in the cause against the tenant to plead in twenty days ; which not being done, he proceeded to enter a default against the casual ejector.

Emott now moved to set aside this default for irregularity. He contended, that until the tenant had complied with all the requisites of the consent rule, he could not be considered as being so in Court as that he could be known as a party to the suit, and that therefore no rule could be taken against him.

Quackenbos said he had proceeded as had always been the practice, at least at Albany and in the northern part of the State

The entry of the default in this manner was certainly irregular. No rule could be entered against the casual ejector in a cause entitled against the tenant. The signing the consent rule, delivering a new declaration, putting in common bail, and filing a plea, are all simultaneous acts; should the tenant therefore neglect to file his plea inflanter, he is to be confidered as not appearing in the suit, and then default is to be entered against the casual ejector. But the default against the casual ejetor is taken under the first rule at the return of the writ, and not in consequence of any new rule.

Default set aside.