Majority
p. 13M’Kenster ads. Van Zandt.
Headnote
A notice ol motion in a cause signed D. B. attorney for defendant, is a sufficient notice of retainer. After appearance of defendant, a rule for discontinuance is a nullity, without the payment of costs.A capias was issued during the last October vacation, tested in October, 1828, returnable on the first day of March then next. On the 19th March, the defendant, by his attorney, gave notice of an intended application at this term to set aside the writ, the notice not stating that the attorney was retained to defend the suit. On the 22d March, the plaintiff entered a rule for discontinuance, and served notice of same on the defendant personally, but did not pay or offer to pay the defendant’s costs.
JD. Burwell, for defendant.
J. T. B. Van Vechten, for plaintiff
The process was void, and must be set aside with costs. The notice of motion signed D. B. attorney for defendant, was a sufficient notice of retainer. (3 Caines, 133.) After the appearance of the defendant, the rule for discontinuance, without the payment of the defendant’s costs, was a nullity. (10 Johns. R. 367.) The motion is granted on the defendant’s stipulating not to bring an action of false imprisonment.