Allan v. Smith

20 Johns. 477

Opinion

Per Curiam,

The affidavits, on the part of the defendant, show, not only that he has a material defence, but that he has been prevented from appearing on the return of the summonSj by mistake and accident. Every Court has the power to adapt its practice to the attainment of justice between the parties ; whatever may be the ancient practice on writs of right, and in actions of dower, we cannot consent, that a party shall be deprived of his right to make a defence, when he has one to make, and has been deprived of the opportunity of doing it,' by mere mistake or accident. We think the motion ought, to be granted.

Rule granted.

(a)

Vide Booth's Real Actions, 23. 25. ch. 8. Saver Default. 2 Sellon's Practice, 295. 2 Saund. 43, 44. n. 1. Co. Litt. 259. 1 Johns. Rep. 329. 18 Johns. Rep. 504