Gilbert v. Field

2 Johns. Cas. 292

• Court: New York Supreme Court
• Decided: July 15, 1801
• Status: Published

Opinion

Per Curiam.

The statute directs, generally, that if the plaintiff does not declare before the end of two terms, the defendant shall be entitled to a judgment of non pros; but the time and manner of declaring, and of entering the judgment of non pros, is left to be governed by the rules and practice of the court. The 7th, 8th, and 9th rules of April term, 1796, require, in all cases, whether the defendant enters his appearance, or files common or special bail, that a rule to declare must be entered, and notice thereof given to the plaintiff, or his attorney, before a judgment of nonsuit can be entered. As no such rule has been entered, or notice given, the judgment must be set aside.

Rule granted.(

a)

lo) See Graham’s Practice, 2d ed. p. 191, 622. Id. 3d ed. vol. 1, 587, and n. (4.)