Vanderpoel v. Wright — 1 Cow. 209

Majority

p. 209

Vanderpoel against Wright.

Headnote

The service g„ndayby the defendant’s in-peal-anee^ void. Nor is

a general notice of retainer a waiver of the irregularity. This is not an appearance, nor is it equivalent to an appearance in the cause. -.

, An appearance can he in but one of three ways, viz. by filing special or common bail; or-by entering an appearance at the clerk’s office.

The defendant endorsed his appearance on the capias ad resp. in this cause, on Sunday, and this service was admitted to be void, within the case of Taylor v. Phillips, (3 Past, 155) and Field v. Park, ( 20 John. 140 .) It was, therefore,

p. 210

moved to set aside the return, and subsequent proceedings'» p>u(. Qjjs was opposed, because the defendant had retained am attorney, who had given a general notice of retainer in the cause- It was insisted, that this was an appearance,- and, therefore, a waiver of the irregularity. Rob & Neilsoruv* Moffat t, ( 3 John. Rep. 257 ) and Van Vechten v. Paddock,- ( 12 John. 178 ) were cited for the defendant.

p. 211

motion was founded, without shewing any excuse why the party, himself, had not made it¿ and this was objected

The notice of retainer is not an appearance. This can be in only one of three ways, viz. either by putting in special bail ; filing common bail ; or, causing an appearance to be entered at the Clerk^s office. (De Wendelaer v. Coomer & Doe, 6 John. 328 .) Nor can this notice be considered equivalent to an appearance.

Motion granted.^[1]

(a) (a) Taylor v. Phillips, (3 East, 155.) In'this cause, the copy of the latitat was served on Sunday. On moving to set it aside, various acts of the defendant were insisted upon, as a waiver, the effect of which the Court did not distinctly pass upon: but Lord Ellenborough, Ch. J. said, that it was a matter of publick policy, that no proceedings, of the nature described in the statute, should be had on a Sunday ; and, therefore, the regularity or irregularity of them, could not depend on the assent of the party after-wards, to waive an objection to such proceedings, which were, in themselves, absolutely avoided by the statute.”