Anonymous — 6 Cow. 390

Majority

p. 390

Anonymous.

Headnote

On setting aside a default for want of a plea, on the ground of merits, if it appear probable that the plaintiff may lose his demand by reason of the defendant’s being in

doubtful circumstances, the court will order the judgment to stand as security ; and grant a rule that the defendant may plead and go to trial, on payment of costs.

This means not only the costs of resisting the motion; but also of the default, and all subsequent proceedings.

J. A. Collier, for the defendant,

moved to set aside á default for want of a plea, on the ground of merits.

H. P. Hunt, contra,

read an affidavit shewing that, by reason of the defendant’s doubtful circumstances, the plaintiff would be in danger of losing his debt, unless the judgment was suffered to stand as security.

Let the defendant plead and go to trial on payment of costs ; the judgment to remain as security.

Collier. Do the court mean the costs of resisting the motion merely; or the costs of the default and subsequent proceedings also ?

Curia. Both must be paid. The plaintiff is entitled to them as a consequence of the default; and at all events. Were this otherwise, the plaintiff would lose these costs altogether, if he should not succeed. We do not mean his obtaining them should in any way depend on the event of the suit.

Rule accordingly .