Executors of Baracliff v. Administrators of Griscom

1 N.J.L. 165

Opinion

Per Curiam.

The practice act having taking 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.

Note. — -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.