Vandeventer v. Phillips — 7 Hill & Den. 143

Majority

p. 143

Vandeventer vs Phillips.

Headnote

Where, on a mofion to set aside a default for not pleading, it appeared that a plea was served in due season, and that the plaintiff returned it, stating to the defendant’s attorney that the service was too late, without mentioning any other objection ; held, that the plaintiff could not urge the non-payment of postage on the letter enclosing the pica as a ground for denying the motion, but that he must be confined to the ground taken by hitn in the first instance.

A. Taber, for the defendant,

moved to set aside a default for not pleading entered by the defendant. He read an affidavit showing that a plea was served by mail in due season, and that the plaintiff’s attorney returned it, alleging that it was not served in time, but mentioning no other irregularity.

N. Hill Jun-i contra,

read an affidavit of the plaintiff’s attorney showing that the plea came charged with postage.

said the objection as to postage could not now be urged by the plaintiff.. He should be confined to the ground taken by him in the first instance, that being the only one which the defendant had any reason to suppose would be relied on in opposition to the motion.

Motion granted.