M'Kinstry v. Edwards

(d) “ Where the default has been regularly entered, also, the court will in some cases relieve the defendant, and let him in to plead, upon terms. It was formerly the practice to set aside a regular default, on an affidavit of merits, only where the defendant could show some excuse for his default; (I Dunl. 379, and cases there cited ;) although they do not appear to have been strict in examining the sufficiency of the excuse ; and in some instances they have relieved against the attorney’s ignorance, or misapprehension .of the practice. 3 Johns. Cas. 92; 6 Johns. 129. The rule also, in latter cases, appears to have been fully settled, that where no trial had been lost, the court would set aside a default, on an affidavit of merits, 6 Johns. 131 ; 14 Johns. 342, (which cannot be contradicted, 2 Wend. 286,) on payment of costs of the default, and of resisting the motion, provided the party applied With due diligence, and upon such other terms, as under the circumstances of the case, might be proper. 3 Caines, 95 ; 6 Johns. 130. The court, however, in a recent ease, have returned to the old rule, and the practice now appears to be settled, that a default for not pleading will not be opened, unless excused. 6 Wend. 517 ; see 1 Hall, 54. As it is wholly discretionary, however, in the court to do this or not, they will not set aside a regular judgment, *114in order to give the defendant an advantage of any nicety of pleading; 2 Sir. 1242 ; or a special plea of questionable matter, designed to draw the plaintiff to demur; 2 Salk. 518 ; but this court have, in such aease, refused to impose as a condition, that the party should not plead the statute of limitations; 10 Wend. 595 ; though formerly, the practice was otherwise. 2 W. Bl. 35. And the Common Pleas in England, have refused to set aside a regular judgment, where it appeared that the defendant had refused to accede to equitable terms of compromise. 4 Taunt. 885. When the court set aside a regular judgment, it is usually upon the terms of the defendant’s paying costs, 1 Salk. 402 ; see Barnes, 256; pleading issuably instanter, I Burr. 586; taking short notice of trial, Barnes, 242, (although this would not extend to a writ of inquiry; 6 Taunt. 458;) and giving judgment of the term, 2 Str. 823, when necessary ; and in some cases also they will order the defendant to bring the money into court. Barnes, 243. And in a recent case in this court, it was laid down that on setting aside a default, for want of a plea, on the ground of merits, if it appear probable that the plaintiff may lose his demand, by reason of the defendant’s being in doubtful circumstances, the court will order the judgment to stand as security, and grant a rule, that the defendant may plead and go to trial, on payment of costs. 6 Cowen, 39!). After the default is opened, the defendant is bound to plead, without being served with a copy of the declaration. 2 Wend. 628.” Grah. Prac. 2ded. 788, 789.