Field v. Goodman

4 Wend. 214

Opinion

By the Court,

Sutherland, J.

The only question is as to the regularity of the plaintiffs in treating the plea of the defendant as a nullity, in consequence of the omission to serve oyer of the release set forth in it. By the English practice, if the defendant omits to give oyer for two days alter demand made, the plaintiff may sign judgment as for want of a plea. (1 Tidd, 531. 6 Mod. 222.) Here, the default was not entered until 25 days after oyer demanded. The written demand being served on the agent of the defendant’s attorney, was equivalent to 12 days demand of the attorney himself. We are disposed to sanction this practice, and to hold the plaintiff’s proceedings as regular. The defendant, however, still insisting on merits, we permit him to come in and defend on payment of costs; the judgment, however, to remain as security for such sum as the plaintiffs may eventually recover.