De Wandelaer v. Coomer — 6 Johns. 328

Majority

p. 328

De Wandelaer against Coomer and Doe.

ALBANY,

August, 1810.

Headnote

In all cases where special ban is not mice nmiVeenmorr bail' fiieTreteinern°iy ea°n ■ attorney is not a sufficient appcarance on which to enter á default for wan o a plea.

D. WOODS, for the defendants, moved to set aside the 7 ... judgment, and execution in this cause, for ir~ regularity. From the affidavit which was read,, it appeared, that this was an action of debt on a recognisance, anc^ the ac et'uml clause, stating it to be debt on recognisanee, was inserted in the capias. The sheriff, without * the knowledge or direction of the plaintiff, or his attor- . ney, held the defendant to bail. About the 1st of March,> t^e piaint¡fps attorney received a notice of retainer from the defendants’ attorney, and on the 14th of March a copy of the declaration and notice of the rule to plead were served on the agent of the defendants’ attorney. On the 30th of April, a default was entered; and on the 1st of Jlíay, a plea was delivered to the agent of the plaintiff’s attorney, in Albany. The plaintiff’s attorney, who resides in Whitestown, after entering the default, perfected the judgment and issued execution, without common or special bail being filed, or any appearance entered.

Woods contended,

that common bail must be filed in all cases where special bail is not required. He cited 3 Caines, 88. 96. 1 Tidd's K.B. Pr. 210. Rev. Lawsr vob 1. p. 388. '

p. 329

Platt, contra,

insisted that the notice of retainer was substantially an appearance, in a Case where no special bail was required ; and that it was to be presumed that the sheriff did his duty, by requiring the defendant only to endorse his appearance, without holding him to bail.

The default was irregularly entered, and must be set aside. In all cases where special bail is not required, an appearance must be entered, or common bail filed.

Rule granted.