Superior Court for Law and Equity, Mero District.
November 1808.
Plaintiff cannot have judgment until the cause is called in course, except where appeals are brought up by the appellee.
Semble, after judgment confessed by the defendant’s attorney in the County Court, the defendant may appeal, and be allowed to plead in the Superior Court, on good cause shown.
An action had been commenced in the County Court, where a demurrer to the declaration was filed; when the case came on the attorney withdrew his demurrer and confessed judgment, the defendant not being present. Appeal to this court, and, upon affidavit, it was moved for leave to plead
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payment. This was on the last day of the court, and the cause stood so far on the docket that it was certain the Court would not come to it. The affidavit stated that the defendant did not agree to nor direct confession of judgment; that he was and still is sick, so that he cannot attend.
SMITH, for the plaintiff, moved for judgment, upon the principle that there was no defence.
Per HUMPHREYS and OVERTON, JJ. —
The plaintiff cannot have judgment until the cause is called in course. There is but one case where judgment will pass out of the order in which suits stand on the docket; where appeals are brought up by the appellee. The affidavit in this case is certainly defective, but as the plea may benefit the defendant and cannot put the plaintiff in any worse situation, it may be received. The onus probandi of this plea will lie on the defendant, and, as the cause cannot come on this term, no injury can arise from the reception of the plea.
POWEL, J., thought the plaintiff was entitled to judgment upon his motion, and that the plea could not be received without disclosing merits.
NOTE. — The Code, 3107, makes a judgment by confession a release of errors, but this provision is taken from the Act of 1801, 6, 64. — ED.