Majority
p. 44Gideon Burnham et al. vs. Rebecca Smith.
Headnote
Where plaintiff, after a stipulation that he would reply before trial, entered into a negotiation and promised to reply within a short time, but did not, held that he must pay costs, on setting aside defendant’s judgment for want of a reply.Motion by plaintiff to set aside judgment for costs against plaintiff for not replying to defendant’s special plea.—Plaintiff’s facts : Action on a promissory note ; plea the general isssue and statute of limitations. In June, 1844, the parties stipulate that issue should be considered as joined, and that plaintiff might put in a replication at any time before the trial. On the 7th October the defendant enters the plaintiffs’ default for not replying. Defendant’s facts : That subsequent to the stipulation, plaintiffs’ attorney promised to put in a replication within a short time; he failed to do so. A rule was entered to reply in twenty days, and not replying the default was entered.
M. T. Reynolds, Defts Counsel. John Cooice, Defts Ally.
P. J. Joachimsen, Plffs Counsel. Hiram Barnes, Plffs Atfy.
In consequence of the plaintiff’s attorney negociating subsequent to the stipulation, he must pay costs.
Decision.—Motion granted on payment of costs of default, and of entering judgment and costs of opposing motion. Plaintiffs to have leave to reply in twenty days after service of this rule.