Davenport v. Ferris

6 Johns. 131

Opinion

Thompson, J.

We have relaxed the practice so far, in setting aside defaults, that I am disposed to extend it, .in every case, as far as we do in ejectment suits, and to set aside a default whenever the party swears to a defence on the merits, and no opportunity fo,r a trial has ■been lost.

Van Ness, J.

I am for granting the rule for the same -reason.

Kent, Ch. J.

I am for granting the rule, under the circumstances of the case, without giving any opinion as to the practice.

Per Curiam.

Take your rule, on payment of costs.

Rule granted.

Footnotes

•

(a)

See Tidd's Practice, 508. 2 Stra. 975. 4 Burr. 1996. The court of K. B. will set aside a judgment by default, though regular, when the plain-•till* has not lost a tria), upon an affidavit of merits, pleading issuahly, in■ilanUVi and payment of costs ; at\d by instanler is meant within 24 hours.