Bayard’s Notebook, 241.[*]
Court of Common Pleas of Delaware, New Castle County.
December, 1798.
Dec. 20, 1798. For an account of later proceedings in equity, see counsel’s argument in Robinson v. Perkins a Clapton’s Notebook, 172.
Present action was upon a recognizance in the Orphans’ Court. Scire facias was waived and suit instituted by consent, as if scire facias had issued. An affidavit was made by defendant for the purpose of putting off the cause; but the Court being of opinion, under the circumstances of the case, that the cause ought not to be continued, it was ordered on. It was then found that the defendant had not pleaded and his counsel being requested to plead, refused. The counsel for the plaintiff then moved for rule upon defendant to plead in [an] hour.
The motion was strongly opposed, but the Court, upon inquiry how the practice had been, granted the motion. The defendant afterwards, before the time to plead elapsed, craved oyer of the recognizance, upon which the plaintiff’s counsel delivere instanter to the defendant’s counsel the original recognizance. Defendant’s counsel insisted this was not oyer, and that they were entitled to a copy of recognizance.
SED, PER CURIAM. If you get a copy, you must pay for it, and if the original is delivered to you, you must make a copy for
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yourselves. If a copy is a good grant of oyer, the original is better.
Defendant persisting in his refusal to plead, when the time originally limited had expired from the time of the oyer granted (which was noted), the plaintiff signed judgment for want of a plea and then moved for an order to charge the jury at the bar to inquire of the damages etc. according to the Act of Assembly [1 Del. Laws 315], which was granted.
Vandyke and Bayard for plaintiffs. Bead an Rodney for defendant.