As the default is not accounted for by the affidavit, it is unimpeaehed,- and therefore must stand : but as the subsequent proceedings are irregular, they must be set aside, with the usual liberty, however, for the plaintiffs to perfect their judgment this term, if they can.
1 Cole. & Cai. Cas. 146
Griswold and another v. Stoughton.
ASSUMPSIT on a promissory note. The plaintiffs had proceeded under the act of the Legislature, and had entered the demand of a plea in the clerkâs office, without serving it on the defendant, who lives in the city of New- York. Judgment by default having been obtained,
Pendleton
moved to set it aside on an affidavit stating, that no rules had been entered, either for interlocutory judgment, or for the clerk to report damages on the note, offering at the same time to pay costs, and put ih special bail.
Higgs, contra.
The proceedings are regular to the default: the affidavit states no excuse for. that; and though the subsequent steps are not according to strict practice, the defendant, being in default, and that default regularly entered, is not entitled to favour. The utmost, therefore,- the court will do, is to vacate the proceedings from the default.
Griswold v. Stoughton
1 Cole. & Cai. Cas. 146
Case Details
1 Cole. & Cai. Cas. 146
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