Sands v. Bullock

Headnote

Where a suit was commenced by the filing and service of a declaration against the maker and endorser of a promissory note, and the declaration was served upon the endorser alone, who appeared in due time and put in a plea of the genera* issue, entitling it however as though he had been sued alone, not saying impleaded with, fyc., and the plaintiff’s attorney, with knowledge that it was intended as a plea in the cause, after retaining the plea seven days, treated it as a nullity, and entered the defendant’s default: it was held, that the default was irregular, it being the duty of the plaintiff’s attorney to return the plea, or apprise the defendant that it was not¡regarded as sufficient.

Here again costs refused, because papers for motion stuffed with unnecessary matter.

Motion by defendant to set aside default and subsequent proceedings. The plaintiffs commenced a suit by the filing and service of a declaration, against Fisk as the maker, and Bullock as the endorser of a promissory note, but the declaration was only served on Bullock. He appeared in due time and put in a plea of the genera] issue, which was entitled and pleaded in the same form as though "he had been sued alone, without saying impleaded with, fyc. The plaintiffs] attorney knew that it was intended as a plea in this cause; but seven days afterwards he treated the plea as a nullity, entered the default of Bullock, and perfected judgment, and issued execution against him. Both attorneys resided in the city of New-York, the plea was not returned 'to the defendant’s attorney, nor was he informed that it was not deemed sufficient.