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tunc, it will be a sufficient answer to an objection on that account.97

judgment.

The court will not set aside a judgment confessed on a Setting aside promissory note, for the purpose of enabling the defendant to set up the illegality of the consideration, as a defence to the action, in a case where both parties are in pari delicto.98

The practice of setting aside judgments entered on bonds and warrants, given by a defendant in custody of the sheriff, in cases where an attorney does not attend, &c.,99 has not been extended in this court to cases where a cognovit is given; and a judgment entered on a cognovit, given under these circumstances, will not be set aside where the evidence is satisfactory that the act was voluntary.100

977 Term Rep. 202. 98 1 Johns. Cas. 331.

99 See ante, p. 607.
100 1 Wendell. Rep. 37.

VOL. I.

78

CHAPTER XII.

OF JUDGMENT BY DEFAULT AND THE ASSESSMENT OF DAMAGES
THEREON.

SECTION I.

OF THE DEFAULT.

Nil dicit, or non sum informatus.

Judgment by default which is an implied confession of the action, is either by non sum informatus, where the defendant's attorney, having appeared, says, that he is not informed of any answer to be given to the action; or by nil dicit where the defendant is stated to have appeared, but to have said nothing in bar or preclusion thereof.

The latter judgment is either for want of any plea at all; or for want of an issuable plea, where this has been made a condition by the court for setting aside proceedings;1 or where the defendant pleads a plea which is not adapted to the nature of the action, or may be considered as a nullity, or is false and vexatious, or not pleaded in due time and proper manner. Judgment by non sum informatus seems to be absolute, being seldom or never used.

16 Johns. Rep. 259.

21 Tidd. Pract. 609.

3

Rule of

When and how the defendant may be entered.] It is pro- court. vided by the rules of court, that " if the plaintiff shall make default in not declaring, then the defendant, or if either party make default in answering, then the opposite party, may have the default entered in the book for entering common rules ; but where the previous service of a notice of a rule, copy of a pleading, or of any other matter, shall be requisite, the default shall not be entered, unless an affidavit of such service shall be filed; neither shall it be entered until special bail, if required, is put in, and if excepted to, has justified."

The affidavit of the service of a copy of the declaration, Affidavit. and notice of the rule to plead, must be positive and sufficient, at the time when the default is entered; it cannot be supplied by a subsequent knowledge of the fact of its having been received.1 It must state the time and circumstances of the service of the declaration, so that it may appear to have been properly made; but it is unnecessary to allege that no plea has been received.5

Where the appearance of a defendant is endorsed on bailable process, the plaintiff, at the expiration of the rule to plead, may enter the defendant's default, although the declaration filed may have been endorsed de bene esse.6

appearance,

When the defendant pleads before he has appeared, or be- Plea before fore the bail are perfected, if special bail be required, the plain- &c. tiff may enter an appearance under the statute, and proceed to judgment by default; the plea being deemed a nullity.7 So where the defendant pleads a plea, not adapted to the

3 Rule 20.

4 5 Johns. Rep. 359.

5

62 Wend. Rep. 289.

76 Cowen. Rep. 56. 1 Cowen.

1 Johns. Cas. 413. S. C. Cole- Rep. 60. 226. Ante, p. man, 110.

Plea not

adapted to

tion.

8

nature of the action, as nil debet in assumpsit, or non-assumpnature of ac- sit in debt,' &c., the plaintiff may consider it as a nullity, and sign judgment. But the plea of nil debet, in an action of debt on judgment,1o or not guilty in an action of debt, on a penal statute,11 is not such a nullity as will warrant the plaintiff in signing judgment,

Oyer.

13

If the defendant, after craving oyer of a deed, do not set forth the whole deed, the plaintiff is entitled to judgment as Absurd plea. for want of a plea.12 And where a plea is clearly absurd on the face of it, the plaintiff may consider it is a nullity, and sign judgment as for want of a plea. Thus in trespass against several for turning the plaintiff out of his house, and keeping his house and goods from him, a plea that the plaintiff had nothing in the house, but jointly and undividedly with one of the defendants, was held to be such as might very properly be treated as a nullity.14 And it seems that where a plea appears on the face of it to be a dilatory plea, the plaintiff may treat it as a nullity, 15

Plaintiff

should not apply to

court.

If a plea is bad or frivolous, the plaintiff ought either to demur to it or treat it as a nullity, and enter a default;16 and an application to the court in such case for judgment by default is unnecessary, and will be denied.17 If the plea be not palpably bad and void upon its face, the opposite party must

8 Barnes. 257. Com. Dig.
Pleader. E. 42. sed vide Cas.
temp. Hardw. 179. Lawes on
Pleading, 529. 1 Chit. Rep. 176
note. And see Lawes on Pleading,
527. 5 Mod. 92. 2 Str. 1022. Cas.
temp. Hardw. 173. 1 Chit. Rep.
715. 716. a. and the cases there
cited as to the validity of a plea of
not guilty in assumpsit or non-
assumpsit, in an action of tort.
94 Taunt. 164.

19 2 Chit. Rep. 239.

11 1 Durn. & East. 462. et vide 3 Bos. & Pull. 111.

12

4 Term Rep. 370.
13 1 Tidd. Pract. 611.
14 2 New Rep. 188.
15 5 Term Rep. 152.

16 3 Johns. Rep. 541. et vide 1 Bos. & Pull. 646. 3 Bos, & Pull. 398. Barnes. 338. 2 Barn. & Ald. 197.

17 3 Johns. Rep. 541.

may be

resort to his demurrer. 18 If the defendant plead a plea in When plea abatement,19 or a plea in bar substantially amounting to a plea treated as in abatement,20 without a verification by affidavit; or if he plead in abatement after four days inclusive from the service of the declaration,21 or if he plead a tender without paying the money into court, or if a plea requiring the signature of counsel be not signed;23 the plaintiff may in all these cases treat the plea as a nullity. So if a sheriff in an action for an escape plead a recaption without affidavit ;24 though if the plaintiff accept the plea and go to trial, he waives the irregularity.25

22

But a plea in abatement cannot be treated as a nullity, because the affidavit annexed was sworn before the defendant's attorney.26 The plaintiff cannot treat a plea as a nullity merely because the court have held one precisely like it bad on demurrer, or on motion for judgment, non obstante veredicto; for the defendant has a right to retain the plea on the record, and have it passed upon with a view to bring a writ of error.27

The plaintiff may enter the defendant's default for not rejoining in the same manner as for not pleading,28 or for not pleading to a new assignment, or joining in demurrer when

necessary.

tice.

Setting aside default, where regular.] It was formerly the Former prac practice of the court to set aside a default regularly entered, on an affidavit of merits, only where the defendant could show

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