Page:Federal Reporter, 1st Series, Volume 9.djvu/200

 BfiOWN V. PHILADELPHIA, WILMINGTON & BALTIMOEE B. 00. 185 �inqiiiry -will be, what is the practice in this regard in the state courts of Delaware? �Eemembering the fact that common-law actions have been judi- cially tried and determined within the territory now defined by the limils of this state for a period of upwards of 200 years, and that it has been repeatedly held, by the higbest courts of judicature within- this state, that the common law of England, up to the time of the declara- tion of independence, is as much a part of our System of jurispru- dence as it is that of Great Britain, it will be material to examine the decisions of the common-law courts of that country, and, ascertaining what they are, see how far the statute laws and practice of our own state have modified them, or afifected their validity here. �The cases referred to by the defendant's attorney, and running back to the time of Williani and Mary, all sustain the principle con- tended for, and recognize the propriety, right, and justice of per- mitting a judgment by default, be it ne ver so regular, to be taken off if it shall appear to the court that the defendant bas a merito- rious, just, and legal ground of defence. Indeed, one of the author- ities goes so far as to permit the judgment to be taken off, and the case to be tried on ifcs merits, notwith standing an acknowledgment by the defendant, at the time of the application, of gross carelessness and neglect on the part of the attorney in not entering an appearance. It thus appears that the ancient and uniform practice in England permitted the default to be taken ofi upon its appearing to the court that the defendant had a just and legal ground of defence. The American authorities cited go to the same point. �If, then, this was the established practice inherited from our English ancestors, and in vogue in our own state up tp the timeof American independence, to what extent has the statute of Delaware, relied upon by the plaintiff, modified or oontroverted it? We cannot see that it does so. A careful inspection of the statute in question shows that it makes provisions for a defendant not served by process, and againstwhom a judgment by default has beenentered. He may come in, and, upon makinc; aflSdavit of the facts, the court must take off the default; but it is silent as to taking off defaults against defendants differently circumstanced. And, in the absence of any express statutory enactments as to other cases, the ancient practice must be held to prevail. �There being no statute provision controverting the ancient prac- tice, is there any modern practice of our state courts in antagonism with it. As we are informed, there is but one reported case, that of ��� �