Allen v. Thompson

Headnote

A default regularly entered will never be set aside without an affidavit of merits. The plaintiffs filed a declaration containing both special and common counts. The defendant pleaded specially to the special counts, but omitted the general issue to the common counts. The plaintiffs caused the special pleas to be stricken out as sham pleas,and entered a nolle prosequi on the special counts, and a default for want of a plea to the common counts. The default was held to be regulm', but the court gave the defendant the opportunity of setting it aside by paying costs, and filing an affidavit of merits.

Mr. C. Walker, for the defendant moved to set aside a default upon a special affidavit, but, which contained no averment of merits. The suit was an action on several promissory notes, and the declaration contained special counts on the several notes, together with the usual common counts. The defendant pleaded specially to the counts on the notes, but omitted the general issue entirely. Whereupon the plaintiffs caused the special pleas to be stricken out as sham pleas, by applying to a Judge at Chambers, and entered a nolle prosequi as to the special counts, and a rule for a default for want of a plea to the common counts. The defendant then pleaded the general issue which the plaintiffs disregarded. Mr. Walker, now moved to set aside the default as being irregular, and contended, that the defendant was entitled to time to plead de novo, after the special pleas had been stricken out.