Davenport v. Ferris

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.(a) 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.