Given v. Driggs — 3 Cai. 150

Majority

p. 150

Given against Driggs.

Headnote

Notice to appoint a new Attorney, need not be by rule of court, and 30 days is sufficient, but it must be personal or tantamount.

AFTER a new trial had been ordered in this cause,^[1] the plaintiff, on the 30th of June 1804, personally ser v ed defendant with a written notice of it, requiring him to appoint anew attorney, as his former one had been promote to the Bench, and that in default of so doing, all subsequent notices would be served by affixing the same in the the clerk of the court. The defendant not having nominated any new attorney, the plaintiff gave notice of trial in the manner above mentioned, and, at the last Albany circuit, took an inquest by default, upon which judgment had been entered and execution sued out.

Williams,

on the above facts, now moved to set them aside, contending that the notice to appoint a new attorney, ought to have been by a rule of court ordering it to be done.

In the case of Bennet adsm. Vielie, July term, 1802, it was decided, that the party must be warned or he is not bound to take notice of the proceedings, and in Harvey a dsm. Hildrith, January term, 1803, we ruled that the defendant must have personal notice, or such as the court would deem tantamount. Our statute, like that of Hen. 4, requires a warning, and the personal service here, was a sufficient one, without any rule of court. The defendant was grossly in default, as nine months elapsed before the plaintiff went on. We think SO days a sufficient and reasonable notice in these cases. You can therefore take nothing by your motion.