James Howell against Daniel Denniston

James Howell against Daniel Denniston. If a rule to plead be given on the return day of the writ, but before it is returned or bail entered, a default and all subsequent pro ceedings thereon will be set aside as being had before defendant was in court. On a motion for irregularity, the want of merita is immaterial. THE plaintiff in this cause filed his declaration de bene cssc,. anci entered his rule to plead on the return day of the writ on . . . which the defendant was taken, but the writ was not jn fact re-tuvner] till seven days afterwards. 1 Blq,ke, on these grounds moved to set aside the default and all subsequent proceedings. He argued, 'that to entitle the plaintiff to take default, he must himself be regular, and within the rules of practice. That, by these, the defendant was not in court, at the period when the rule to plead was entered. It was a demand, therefore, when there was no one to answer, and a plea cannot be required but of a party in court. The foundation of the proceedings had being the default, if that was bad, the whole must fall. NEW-YORK, May, 1805. Emott contra, read an affidavit shewing, that though the rule to plead was entered before the writ was returned, yet the default , „„ . ,, was not entered till more than 20 days after the writ was actually filed, and that the defendant had confessed he had no defence. __ , , , . . , , , He contended that the return ot the writ made good the entry of the rule by relation. Therefore, the instant it was on file, the defendant was to be considered as in court from the day of the return, and the want of merits was acknowledged. [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 en= tered, there is no basis for a proceeding, and the court has no cognizance of the cause, so as to authorize pleadings. With respect to their being no merits, we never regard that, when the application is for irregularity.