
    Turner vs. Burrows.
    After the plaintiff had executed a writ of inquiry, the defendant’s attorney agreed to waive a motion he was about making to set aside the proceedings, and gave a cognovit for the same amount at which the damages had been assessed: whereupou the plaintiff’s attorney stipulated not to perfect judgment until a specified period thereafter, but delivered the stipulation upon an express parol condition, that the defendant should pay all the disbursements attending the execution of the writ of inquiry, which the latter neglected to do, though repeatedly requested :—Held, that the 63d rule did not apply to the case, and that the plaintiff was regular in perfecting judgment on the inquisition in disregard of the terms of his stipulation.
    Under the act of May 14th, 1840, (Sees. Laws 1840, p. 327,) judgment may be entered in vacation, on a writ of inquiry returnable at the succeeding term.
    In cases within that act, a writ of inquiry is valid, though returnable in vacation.
    Motion to set aside, judgment for irregularity, This suit was commenced in Nevember, 1840. The defendant’s default for want of a plea having been duly entered, the plaintiff, pursuant to notice for that purpose, proceeded on the 15th of February last to .execute a writ of inquiry, and had his damages assessed at $3328,87. The defendant on the same day gave notice of a motion to be made at the next March special term to open the default. He also insisted that the inquisition had been taken in violation of an order to stay proceedings. On the 26th of February the defendant’s attorney agreed with the plaintiff’s attorney to waive the motion and the defence, and gave a cognovit for the same amount of damages which had been assessed by the jury; and the plaintiff’s attorney stipulated not to perfect judgment or issue execution until the first day of April. This arrangement, as the plaintiff’s papers state, was made on the express condition that the defendant paid the disbursements attending the execution ,of the writ of inquiry. After those disbursements had been' several times demanded without being paid, the plaintiff’s attorney, on the 10th day of March, gave notice in writing to the defendant’s attorney, that as the conditions of the agreement had not been complied with, he should treat the cognovit as a nullity, and proceed to enforce the plaintiff’s claim under the inquisition. On the same day the plaintiff perfected judgment on the writ of inquiry, which was returnable on the first day of the then next May term.
    
      I. Harris, for the defendant,
    moved to set aside the judgment for irregularity. He said the condition set up by the plaintiff concerning the payment of disbursements was void within the 63d rule because it was not in writing, and the plaintiff was not, therefore, at liberty to proceed to judgment before the first of April. But at all events the plaintiff was irregular in proceeding to judgment on the inquisition before the return day of the writ of inquiry had arrived.
    
      P. Gansevoort, contra.
   By the Court, Bronson, J.

The 63d rule does not apply to a case like this. We cannot allow an attorney to disregard his verbal agreement and thus set aside a judgment where there is no pretence of a defence on the merits. As the defendant refused to perform the condition on which the cognovit was received, the plaintiff was at liberty to treat the arrangement as at an end and proceed to judgment on the inquisition.

It has been said that writs of inquiry of damages are not process within the statute relating to the testes and return of process. (Cook v. Tuttle, 2 Wendell, 289.) Still, according to the former practice, such writs have always been tested and made returnable in term time, and judgment could not be entered until the return day of the writ. The theory was, that the judgment was actually pronoun-, ced by the court on the coming in of the writ and- inquisition. But this fiction has been entirely overthrown by the statute which provides that judgments may be entered and perfected in vacation. (Stat. 1840, p. 334, § 23.) To give full effect to this statute we must either permit writs of inquiry to be made returnable in vacation, or allow the judgment to be entered before the return day of the writ. We see no solid objection to either course, and this judgment is consequently regular.

Motion denied.  