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Davis v. Adams

4 Cow. 142 Court N.Y. Sup. Ct. English

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Majority

p. 142
Davis against Adams.

Headnote

plea will frivolous .because no, pre[demur’ on mo«oiT of~ • can the ^numty! er a tdgment,’ ■ default, dicit. 'sí right on it passed upon, with a a writ of error, thiTspeciafcircnmstances^of theplahitiffon ll*^ up^on a rion-enumerenter jud^nént as upon a dojomder.
Assumpsit on two promissory notes, made at Alexandria, in the district of Columbia. The defendant had pleaded the same plea .as he had done in the cause of Whittimore v. Adams0 (2 Cowen’s Hep. 626.) At first, the plaintiff demurred an^ the defendant joined in demurrer; but on seeing the report of the first case, the plaintiff at the last term, byS. M. Hopkins, his counsel, moved to set aside the plea as frivolens, which I opposed for the defendant, and the motion was denied by the Court; but they allowed Hopkins to withdraw his demurrer, which he did ; and thereupon the plaintiff treated the plea as a nullity, and immediately entered a rule of course for judgment of nil dicit. This X moved to get aside as irregular, upon an affidavit that the plea was put in in good faith; and that the attorney desired to retain ^ upon the record with a view that he might bring a writ of error, which motion was opposed by Mr. Hopkins, hut granted with costs; whereupon the plaintiff treated the p]ea ag a confession of the action by nil dicit and entered a rule for judgment generally; and that the clerk assess damages. At the present term, I moved to set aside this last ryje for irregularity, which was opposed by Mr, Hopkins.

The .plaintiff should either have retained his de'tirrerj and gone to argument upon the calendar, or confessed the defendant’s plea, taking a judgment to he levied °f his goods and chattels; or have taken -issue, .suffered a verdict for the defendant, and then moved for judgment non ' obstante veredicto, as was done in Whittimore v. Adams. The defendant ds;entitled to retain his plea upon the record, and have it passed upon by the Court, with a view to his writ of error. Therule -for judgment must he set aside with costs ; but under the special circumstances of this case, the plaintiff may enter up judgment as upon the demurrer and joinder heretofore interposed in the case.

Rule accordingly.