Henderson v. Scurlock, 1 N.C. 307, 1 Tay. 307 (1802)

July 1802 · North Carolina Superior Court

1 N.C. 307, 1 Tay. 307

Henderson versus Scurlock.

THE writ was returned executed to the last term, and an appearance entered by the defendant’s attorney, who informed the plaintiff’s attorney, upon entering up the rules, that he should file a plea in abatement. The plaintiff’s attorney, upon learning the substance of the plea, said he should take issue upon it : but no plea was entered, and, upon motion to enter a judgement by default as of the last term and to execute the inquiry instanter:

Plaintiff allowed to enter judgment as of last term, and execute his writ of inquiry.

By

the Court.

It is stated by the attorney for the plaintiff that he should have exercised his right of taking judgment by default at the last term, but for the expectation that the plea in abatement would have been filed ; on which he admits, that he had intended to take issue. Had this been done, the plaintiff would be now entitled to a trial of the issue, and, in the event of its being found for him, to a peremptory judgment. He ought not therefore to be delayed a term by the omission to plead in abatement.

Motion allowed