It has been the uniform practice of this court, for many years past, to file the declaration de ^ene esse' at any ^me before an appearance is entered, or ■bail filed.]
At any rate, the party shows an excuse, swears to merits, and no trial has been lost,† and he ought to be allowed to plead.
Wadsworth, contra, insisted, that as the 40 days had not expired, the declaration was regular, even according to the English practice. A regular default will not be set aside, though there is an affidavit of merits.‡
Per Curiam.Filing the declaration de bene esse, within the 40 days, was regular; but we do not say whether it can be filed de bene esse, at any time, after the time for pleading has expired. Here is an affidavit of merits, and an excuse shown, and no trial lost; we will, therefore, grant the rule, on payment of costs.
Rule granted,
3 Caines, 134.
8 Caines, 95.