Executors of Baracliff v. Administrators of Griscom

1 N.J.L. 191

Opinion

Per Cur.

The practice act having taken away demurrers, the motion to set aside the plea is the proper mode of proceeding,

(a)

Judgment by default is a confession of assets; want of assets can never be given in evidence; of course the plea is bad — the administrators are estopped by the judgment.

Rule absolute.

Davenport for defendants.

Cited in Howell v. Potts, Spenc. 4.

In Dunlap v. Kinney, April Term,, 1788, it was held by the court that, under the practice act, in order -to try the goodness of a plea, the party is driven from a demurrer to a motion. It amounts, however, to the same thing; it is no longer a demurrer in form, but it is a demurrer ore tenus.