Sheldon v. Campbell — 5 Hill & Den. 508

Majority

p. 508

Sheldon and others vs. Campbell and another.

Headnote

On a motion to set aside a judgment by default for not pleading in an action upon a promissory note, it appeared that, intermediate the commencement of the suit and the entry of judgment, the defendant wrote to the plaintiff, admitting the debt and asking time for payment; held, that the motion ought not to be grant, ed, unless, in addition to an excuse for not pleading in time, the defendant gave some explanation of the letter or made a special affidavit of merits disclosing the particular nature of his defence.

A. Taber, for the defendants,

moved to set aside the judgment by default in this case, on an affidavit setting forth an excuse for

p. 509

not pleading in time, and also that the defendants had a good and substantial defence on the merits ifcc. It appeared on the part of the defendants that the action was on a promissory note, and that, intermediate the commencement of the suit and the entry of judgment, the defendants wrote to the plaintiffs, admitting the debt and requesting time for payment.

N. Hill Jun., for the plaintiffs,

objected that the common affidavit. of merits was not sufficient under the circumstances. The defendants should have given some explanation of the letter, or disclosed the particular nature of their defence; and

said he was of that opinion.

Motion denied.