
    
      The Surviving Partners of Alston, Young & Co. vs. the Heirs of Bressie Parish.
    This was an Action of Debt brought upon a bond executed by the Father of the Defendants, in his life-time, to the Plaintiffs. The writ was executed and returned to May Sessions of Granville county, 1799; the Defendants made no defence— a judgment by default was taken—at August court the cause was continued ; and at November term the Defendants moved the Court to set the judgment by default aside, and for leave to plead such pleas as they might think proper, intending to plead the act of 1715, "barring all claims against the estates of deceased persons, after the expiration of seven years from the death of the debtor.” The County Court set the judgment by default aside, without restricting the Defendants in pleading. From this decision the Plaintiffs appealed to Hillsborough Superior Court of Law, and after argument, the question was submitted to the Judges here.
   By the Court.

The default in this case, was taken in a manner to the rules of practice established by the court law, and is therefore unexceptionable in point of regularity. The discretion residing in the Court, to set aside such judgments, ought to be exercised with a view to the attainment of justice, and the prevention of delay under the particular circumstances of each case. It is necessary not only that the application should be made within a reasonable time, but the merits likewise which the Defendant seeks to have tried, ought to be clearly and concisely stated in an affidavit. It follows that this default was improperly set aside, because done at the third term after it was duly taken, and without imposing on the Defendant the usual terms of entering a plea which should bring forward the merits of the cause.  