Fore v. Folsom ( 1840 )

Opinion of the court, by

Mr. Justice Turner.

It is contended on the part of the plaintiff below, that the affidavit is insufficient, in this, that it did not set forth any reason for not pleading in time, according to the rules of court.

To this it is answered that, if the defendant below makes affidavit that he has a meritorious defence to the action, showing what the merits are, that the court may judge of them, and makes his motion in time so as not to delay trial, the court will, and should set aside a judgment by default, and allow a plea to the merits; and of this opinion is this court. I consider that it is the long established practice of the courts of the country to do this. The ends of justice are promoted by this course. The court will, in its discretion, see that no injustice is done to the opposite party, and will put the party in default upon terms, such as payment of costs, pleading instanter, and not delaying the trial of the cause. In this case the jury were in attendance, and the defence set up is a legal defence against the note sued on. See 6 John. Rep. 130, 131; Tidd, 592, 508; 2 Stra. 975; 4 Burr, 1996, 568.

Judgment reversed, and cause remanded for proceeding in the court below.