Sharp v. Sharp — 1 Wend. 14

Majority

p. 14

Peter Sharp and others, infants, by H. Sharp, their guardian, ads. Jane Sharp.

Headnote

In scire facias, notice of the rule to plead isnotnecessarj". The plea that the parol demur is bad, and may be treated as a nullity.

This is a scire facias against the defendants, as the heirs and terre-tenanls of John Sharp, their father, on a judgment against him. The defendants are minors within the age of twenty-one. On the 25th February their appearance was entered by H. Sharp, their guardian ad litem. On the 5th March, the plaintiff declared, enterd a rule that the defendants plead within twenty days after entry of the rule, and served a copy of the declaration on the acting attorney of the defendants, unaccompanied with a notice of the rule to plead. On the 8th March, separate pleas of infancy, verified by affidavit, praying that the parol may demur until full age, were put in. After the lapse of twenty days from the day of the service of the declaration, the default of the defendants was entered as for the want of a plea. A motion was now made to set aside the default as irregularly entered.

Jl. S. Gan, for defendants.

G. W. Strong, for plaintiff.

By the fourth general rule of April term, 1796, the rule on a scire facias for a defendant to plead, is a twenty day rule from the time of its entry; and notice of the rule is not necessary to be served on the defendant. (1 Caines, 118.) The fact of an attorney having been employed by the guardian to conduct the defence, does not vary the practice, which must be governed by the general rule. The plaintiff was therefore regular in his practice in this respect. He was. also regular in entering the default, notwithstanding the pleas. The plea that the parol may demur is taken away by statute. (1 R. L. 318.) The pleas put in, therefore, were palpably bad, and the plaintiff was at liberty to treat them as nullities, and to sign judgment as for the want of a plea. (3 Johns. R. 541.) There being an affidavit of merits, the default is set aside on payment of costs.