Burr v. Kernan — 6 Hill & Den. 263

Majority

p. 263

Burr vs. Kernan.

Headnote

The statute abolishing the rule to plead (Sess. I. 1840, p. 333, § 16) applies only to personal actions, and in cases of scire facias; but does not affect the practice in actions of ejectment.

E. F. Smith, for the defendant,

moved to set aside the default which the plaintiff had entered, for irregularity. It was an action of ejectment, and the plaintiff entered the rule to plead on which the default was founded, without filing any affidavit of the service of the declaration. (2 R. S. 305, § 16.)

H. V. D. Van Epps, contra,

said no rule to plead was necessary. (Sess. L. of 1840, p. 333, § 14.)

The statute of 1840 only abolishes the rule to plead in personal actions commenced by declaration, and in cases of scire facias. It was not intended to reach the special provisions relating to the action of ejectment.

Motion granted.