General
James Howell v. Daniel Denniston
1 Cole. & Cai. Cas. 448·New York Supreme Court·1805·NY
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Opinion
James Howell v. Daniel Denniston.
THE plaintiff in this cause filed his declaration de bene esse, and entered his rule to plead on the return day of the writ on which the defendant was taken, but the writ was not, in fact, returned till seven days afterwards.
Blake, on these grounds,
moved to set aside thede fault and all subsequent proceedings.
Emott, contra,
[MAJORITY — Kent, C. J.]
Kent, C. J.
The rule to plead was irregularly entered; because, until the writ be returned, bail filed, or an appearance entered, there is no basis for a proceeding, and the court has no cognizance of the cause, so as to authorise pleadings. With respect to their being no merits, we never regard that, when the application is for irregularity.