Majority
p. 344Tallmadge against Stockholm and another.
Headnote
A default tor win always be set aside, on payment of costs, if there is merit®daTud no trial has been foatfTHIS was an action for a libel. After the declaration and rule to plead had been served, the defendants obtained an order , * for enlarging the time of pleading to the 20th of September ® ° i o i ^asU and no plea having been put within the time limited by
p. 345now moved to set aside the default, and to enlarge the time for pleading. He read an affidavit, stating the reason why no plea had yet been put in ; that the venue was laid in the county of Dutchess, and no trial was lost, as the next circuit in that county could not be held before April next.
the order, the plaintiff entered the default of the defendants, for want of a plea.
Bloom, for the defendants,
Swift, contra.
We have, from time to time, gradually the practice, as to setting aside a default for want of a plea; we have now come to the general rule, that a default for want of a plea, though regularly entered, will be set aside, in every case, on the payment of costs, where there is an of merits, and no trial has been lost. The payment of costs is a sufficient penalty on the defendant for neglecting to plead. We grant the motion, therefore, on payment of costs.
Rule granted.[1]
(a) (a) Vide Davenport v. Ferris, 6 Johns. Rep. 131 . Tidd's Pr. 508.