Cook v. Finch

Headnote

Where default is entered, and defendant’s attorney, some twenty days after he is informed of it, tenders a plea, &c., and offers to pay all costs, and the plaintiff's attorney refuses to accept of the tender, on the ground of delay, and a motion is made by defendant’s attorney to set aside the default, &c., the motion will be granted on payment of all costs, except the costs of the motion, which would have been allowed to defendant, if he had not delayed in making tender.

Motion by defendant to set aside default and subsequent proceedings.

Narr served November 25, 1845. November 29, defendant’s attorney served affidavit and notice of motion to change the venue and copy order staying proceedings on plaintiff’s attorney (not being aware of the 95th rule, he supposed the order to stay enlarged the time to plead). On the 18th December, default was entered. On the 26th December, plaintiff’s attorney received a plea of the general issue. On the same day he returned it to defendant’s attorney, stating that the default had been entered, and refused to accept it; immediately defendant’s attorney wrote to plaintiff’s attorney, and offered to pay his costs of default and subsequent proceedings, if He would open the default, to which he received no answer. On the 19th January, 1846, defendant’s attorney tendered plaintiff’s attorney a plea of affidavit of merits and affidavit of excuse for not having pleaded in time, and offered to pay costs of default and subsequent proceedings, which plaintiff’s attorney refused to accept, for the reason that, under rule, 20, defendant’s attorney was required to make the tender as soon as he knew the default was entered.