
    Van Vechten vs. Cowell.
    Where, to a declaration in debt on simple contract, the defendant pleaded non assumpsit, and a set off against the promises mentioned in the declaration; held, that the plaintiff might treat the pleas as a nullity, and enter the defendant’s default.
    R. W. Peckham, for the defendant, moved to set aside the default and subsequent proceedings for irregularity, on the ground that the default was entered after the service of pleas.
    
      J. Van Burén, contra,
    read an affidavit stating, that the declaration was in debt on simple contract, and that the pleas served were, 1. non assumpsit, and 2. a plea of set off against the promises mentioned in the declaration. He insisted that the plaintiff was right in treating the pleas as a nullity, and cited Perry v. Fisher, (6 East, 549;) Brennan v. Egan, (4 Taunt. 164.)
   By 'the Court, Bronson, J.

The cases cited show that the plaintiff was at liberty to treat the pleas as a nullity; and as there is no affidavit of merits, the motion must be denied.

Rule accordingly.  