
    Alderman, Bateman and Bateman ads. Diament.
    A judgment on a. bond and warrant of attorney will be set aside on affidavit of a defence, and defendant permitted to plead to the merits; but not permitted to plead non est factum.
    
    A judgment on a bond and warrant of attorney had been entered against Alderman, Bateman and Bateman, in favor of Diament, at the last term.
    
      * Wall
    
    now applied to have this judgment opened, and for leave to plead to the merits, and read the following affidavit, as the ground of his application : “Eobert Aider-man, being duly sworn, saith, that he is advised, and verily believes, that the said defendants have a just and legal defence to make against the right of the plaintiff to recover the money mentioned in the condition of the bond upon which the above judgment is founded, the said bond being-given and executed by this deponent, as principal, and the said Ephraim Bateman and Charles Batement, as securities of deponent; and deponent having demands against the said plaintiff (exclusive of the credit for about sixty dollars, which he understands has been endorsed on said bond) for certain hides and bark sold and delivered to plaintiff by defendant, and which he agreed should be set off against the sum due upon the said bond, which demands deponent believes amount to about §250. He further saith, that the application to open the aforesaid judgment is not made for the purpose of delay, but that deponent and the said Ephraim and Charles may have a fair trial on the merits of the case. And he further saith, that the first information he received of the aforesaid bond being entered up, was when the under-sheriff served the execution issued in said suit upon him and the other defendants yesterday afternoon.
    
      
      L. Q. O. Elmer
    
    opposed the motion, and insisted that if the judgment was opened the defendants ought not to be permitted to plead generally to the merits, nor to plead non est factum.
    
   Kirkpatrick, O. J.

The practice of this court has been, in cases of this kind, to open the judgment and let the party go to trial upon the merits, and to plead any plea he thought proper, except a mere dilatory plea. I think, therefore, the defendants would be at liberty to plead non est factum, and, indeed, I think that these judgments entered upon bonds and warrants of attorney should, upon proper application, be very readily and widely opened, for the method in which they are entered is the loosest way of binding a man’s property that ever was devised in any civilized country.

Ford, J., thought that after the defendants had given a warrant of attorney to confess the bond that they could not plead non est factum.

*Rossell, J.

thought that by the present applies.-' tion and affidavit the defendant acknowledged the existence of the bond, and therefore ought not to be permitted to plead non est factum.

The court granted the following rule : “ It is ordered that the judgment in this case be opened, and the defendants allowed to plead and make defence on the merits; nevertheless the defendants are not at liberty to plead non est factum, and the j udgment and execution to stand as a security for the plaintiff.” 
      
      Note — If fraud is suggested, or usury alleged in regard to a judgment entered upon a bond and warrant of attorney, the usual and proper way is, to let the judgment stand, and to award a feigned issue to try the fact. Machir v. Delaval, 
        
        Barn. notes. 277; Wardell v. Eden, 2 John. Ca. 258. As to other judgments, not entered on bonds and warrants of attorney, the court also, in some cases, upon an affidavit of merits, will set -them aside, though regular, if the plaintiff does not thereby lose a trial. 1 Coxe 201, Den ex dem. Lee v. Evans; Den. v. Ferin, 1 Halst. Rep. 431; 2 Ibid. 161; 2 Salk. 518; 1 Ibid. 402. And in the case of Abrams and Rolf v. Wood (1 South. 39,) the judgment was opened although the plaintiff had lost a trial. As it is wholly discretionary with the court to set aside a regular judgment or not, they will not do it in order to give the defendant an advantage of any nicety of pleading, (2 Str. 1242,) or to let him plead the statute of limitations, (1 W. Bl. 35,) or a special plea of questionable matter designed to draw the plaintiff to demur (2 Salk. 518,) or an irregular judgment after the defendant has given a cognovit (7 Term. Rep. 206,) but that defendant may plead his bankruptcy. See 1 Bos. df Ful. 52. When the court set aside a regular judgment, it is usually upon the terms of the defendant’s paying costs (1 Salic. 402,) pleading issuably instanter (1 Bur. 586,) taking short notice of trial (Barnes 242,) and in some cases they will order the defendant to bring the money into court. Barnes 243; 2 Arch. Frac. 11; Tidd’s Brae. 508. And the court will set aside a judgment in ejectment as well as in other actions. 1 Coxe 201; 1 Falst. 431; 2 Ibid. 161; 2 Str. 975; 4 Bur. 1996.
     