Page:Federal Reporter, 1st Series, Volume 9.djvu/199

 184 FEDERAL REPUBTER. �defendant believed he had a good defence to the whole or some part of the cause of action. Tbis practice, we believe, has always prevailed in this state, and rests in the sound discretion of the court. The second paragraph of sec- tion 3 of chapter 102 of the Revised Code obliges the court to take off such judgment upon aiiidavit made in compliance with its requirements, but this has never been understood to affect f urther the aneient practice. Of course, if execution had been issued upon such a judgment, it would remain caution- ary. Chapter 102 is no older than 1852, �" J. P. COMEOYS, G. J. �"John W. Houston, J. " Edward Wootten, J. «L. E. Wales, j." �— And the affidavit of the president of the road of a meritorious cause of action ; of a direcior of the road upon whom process had been served and who notifled counsel ; of the attorney of the road that he had mistaken the tribunal and had directed the prothonotary of the state court to enter his appearance in the railroad case honaflde, thinking the case was in that court. �James W. Gray, contra, relied upon — �Section 914, Rev. St., conforming the practice in the United States courts to that of the state courts, and to the following provision of the Delaware State Code regulating the practice in the state courts, viz.: �"If the defendant in a writ of summons shall not appear at the return-day thereof, and it shall appear by the return that he was duly summoned, it ishall be lawful for the plaintiff, having uled his declaration, to take judgment thereon for default of appearance, according to the rules and practice of the court. But if the defendant shall, at or before the next term after such judg- ment, by affidavit, deny notice or knowledge of such suit before the judgment was rendered, and shall allege that there is a just or legal defence to the action, or some part thereof, such judgment shall be taken off and he shall be permitted to appear; any execution which may have been issued thereon to remain cautionary." Section 3, Del. Rev. Code 1874, c. 102, pp. 633, 634. �Bradford, D. j. The facts in the case are as follows: The plaintifE brought suit to the last June term of this court to recover damages for injuries suffered by him by alighting from a train en route through this city and stopping temporarily to permit the passengers to obtain ref resh- ment, The summons was properly issued and served upon the corporation defendant. No appearance was ever entered by defendant, and, upon August 2d last, the plaintiff flled his declaration and entered judgment by default for want of an appearance. At the present Oetober term, on October 19th, the plaintiff obtained an order, in the nature of a writ of inquiry, for the ascer- tainment of the damages by a jury attending at this term. �Upon this state of facts the defendant moves to-day that the judg- ment be stricken off the record, and presents the affidavits before mentioned. �Section 91e, Eev. St., requiring the practice, etc., in the United States courts, in cases other than equity and admiralty, to conform, as near as may be, to the practice, etc., in like cases in the state courts of the states in which such United States court is held, the first ��� �