
    Hart and another against De Lord and Bailey.
    Where one of two defendants pleads, and the other makes default, the plaintiff cannot proceed to try the issue joined and have the damages assessed against both defendants, before an interlocutory judgment has been regularly entered against the defendant, who neglects to plead.
    THIS was an action of assumpsit. The defendants appeared by the same attorney, gave notice of special bail, and received a copy of the declaration. De Lord pleaded non assumpsit, and the cause was duly noticed for trial, at the Rensselaer circuit. Bailey did not plead; and judgment by default was regularly entered against him on the 6th of November. At the Rensselaer circuit, in November last, the plaintiffs, (without any interlocutory judgment against Bailey,) pursuant to a notice for that purpose, tried the issue joined on the plea of lie Lord, and the same jury assessed the damages against him and the other defendant. On the first day of the term, the attorney of the plaintiffs filed the nisi prius record, &c., and a rule, nisi, for judgment against both defendants ; no rule for interlocutory judgment had been entered, and four days in term had not expired since the default of Bailey had been entered.
    
      Walworth, for the defendant,
    now moved to set aside the inquest taken at the Rensselaer circuit, and all subsequent proceedings. (1 Caines, 6. 6 Johns. Rep. 325.)
    
    
      J. Paine, contra.
   Per Curiam.

The inquest, and all subsequent proceedings, must be set aside as irregular.

Motion granted.  