Meacham v. Dudley
New York Supreme Court
Motion to set aside default. This is an action against the defendant, as sheriff of Oswego, for the escape of one Bentley. The capias returnable in October, 1826, was duly served on the sheriff. Previous to the day of return of the writ, Bentley retained attornies to defend the suit, who, in May, 1827, ruled the plaintiff to declare. The plaintiffs’ attorney having possession of the writ, and not having filed it, disregarded the rule to declare.
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Motion to set aside default. This is an action against the defendant, as sheriff of Oswego, for the escape of one Bentley. The capias returnable in October, 1826, was duly served on the sheriff. Previous to the day of return of the writ, Bentley retained attornies to defend the suit, who, in May, 1827, ruled the plaintiff to declare. The plaintiffs’ attorney having possession of the writ, and not having filed it, disregarded the rule to declare. The writ was filed in August, 1828, and in April, 1830, the defendant’s attornies again ruled the plaintiff to declare. On the 22d May a declaration…
1Opinion of the Court
By the Court,
Savage, Ch. J,
In Denton v. Noyes, 6 Johns. R. 296, the court refused to set aside a judgment which had been confessed without authority, but stayed proceedings on the judgment, and gave the defendant an opportunity to contest the demand of the plaintiff, by permitting him to plead, and requiring the plaintiff to go to trial. In delivering the opinion of the court, Kent, Ch. J. adverts to the rule laid down by the King’s bench, in the lime of Lord Holt, 1 Salk. 88, that if the attorney for the defendant be not responsible, or perfectly competent to answer to his assumed client,…
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