Majority
p. 443Rowan vs. Merritt & Porter.
Headnote
Where there is an interlocutory order for a bill of particulars, and that in the meantime all proceedings stay, and a peremptory order be subsequently made, the plaintiff cannot proceed in the suit until he delivers the bill; the defendant is not bound to servo the final order.The defendants obtained an order for the plaintiff to shew cause why he should not deliver a bill of particulars, and that in the meantime all proceedings on the part of the plaintiff stay, A peremptory order was subsequently granted, but the defendants not serving it upon the plaintiff, he entered their
p. 444
default for not pleading, which was now moved to be set aside as irregularly entered.
The default was irregularly entered ; the defendants were not bound to serve the peremptory order for any purpose but to non-pross the plaintiff. The portion of the original order that in the meantime all proceedings on the part of the plaintiff stay, continues and is operative until the delivery of the bill of particulars, if a peremptory order be granted.