Majority
Headnote
THE Plaintiff had filed his Declaration in vacation ; and the Rule to plead having expired, he entered interlocutory judgment the Lift, Term, without having firft entered a default.•“ When this queilioh was prefented in the firft “ inílance. I did fuppofe that the entry of the “ default could not, under the exifting rule, have “ any other effcCt, than merely to preclude the “oppofite Party from pleading; and that the “ Plaintiff might waive the entry of the default, “ and enter a Rule for Judgment.
“ Upon further reflection on the fubjeft, and’ “ after carefully examining the eighth Rule, entered “ in April Term, 1796, it appears to me to be the “ better conitruCtion, that the entry of the de- “ fault is indifpenfable to entitle the Plaintiff to “ his judgment, the expreflion being, “ That tfíe “,default being duly entered, the Party who Jhall “ have had it entered, Jhall not be held afterwards “ to accept a Declaration or Anfwer, as the Default “ Jhall happen to be, and may at any Time after jour “ Days in Term Jhall have intervened thereafter, “ have a Rule for fuch Judgment as is to be rendered “ by Law, by reafon of the default.” This impofes “ it on the party entering the Default to file the “ neceffary proofs to evince its regularity; and “ if any fubfequent queilion arifes on that fub- “ je£fc, a refort to thofe proofs affords a determi- “ nate teff.
“We are all of opinion that the interlocutory “ judgment be fet afide.”