Davenport v. Ferris — 6 Johns. 131

Majority

p. 131

Davenport against Ferris.

NEW-YORK,

May, 1810.

Headnote

aside, on pay-. ment of costs, if the defendant fence3 or8 the "ppol-tunhy for ¡^™1,os|'as not A 7....... f°r want of. a tiIm. will lie sol-plea, will "be set

MUNRO, for the defendant, moved to set aside the default entered in this cause. • The writ was omitted to employ an attorney to defend the suit, until ■l ii.ji i, i i-the 30th April, when he was informed that the plum-tiff’s attorney had filed common bail, and entered ade~ fault for want of a plea. He also stated that he had a good and substantial defence on the merits, as he -was advised, &c. at the last term. The defendant, in his affidavit, stated, that he was so much ene-aved in other business, that he ° ° J

P. W. Radclijf,¡

contra, read an affidavit, stating- that the declaration was filed, and a notice of the rule to plead served, so early in March, that if the defendant had pleaded to issue within the time allowed to plead, the cause might have been noticed for trial at the ApHl sittings. . .

We have relaxed the practice so far, in setting aside defaults, that I am disposed to extend it, .in every case, as far as we do in ejectment suits, and to set aside a default whenever the party swears to a defence on the merits, and no opportunity fo,r a trial has ■been lost.

I am for granting the rule for the same -reason.

I am for granting the rule, under the circumstances of the case, without giving any opinion as to the practice.

Take your rule, on payment of costs.

Rule granted.^[1]

(a) (a) See Tidd's Practice, 508. 2 Stra. 975. 4 Burr. 1996. The court of K. B. will set aside a judgment by default, though regular, when the plain-•till* has not lost a tria), upon an affidavit of merits, pleading issuahly, in■ilanUVi and payment of costs ; at\d by instanler is meant within 24 hours.