
    Leispenard against Baker.
    ALBANY,
    August, 1810.
    Where the nepíele!, lí'ith ^ cKoon11'6 was defendant^ I't-1 sonil||y, the ,2th of May, and special bait 28th of thereoforofthe retainer of an attorney,was given to the plaintiff’s attorney, until the 6th of June? and a default was entered or the 4th of June, for want of a plea; it was held, that the default was regularly entered. The notice of appearance is for the benefit of the plaintiff’s attorney, and may be waived by him. It is sufficient, under (lie 7th rule, of Jlpvil term, 1796, that the defendant, though the rule for pleading has expired, has 4 days after bail is actually filed, before his default is entered*
    CARBINIER, for the defendant, moved to set aside the default entered in this cause, for want of a plea, and all subsequent proceedings, on the ground of irregularity.
    From the affidavits which were read, it appeared that a copy of the declaration (which had been filed de - ,, bene esse) and notice ot the rule to plead, were served on the defendant, personally, on the 12th of May, (no notice of any attorney being employed having been reeeived.)
    On the 1st of June, the plaintiff’s attorney informed the bail to the sheriff, that unless special bail was put in, before the 8th of June, the bail-bond would be put in suit, and was answered, that bail was filed. On searching the clerk’s office, the plaintiff’s attorney found, that the special bail-piece had been filed, on the 28th of May ; and on the 4th of June, he entered a default for want of a plea. On the 6th of June he received notice of a retainer, and of special bail, from the- defendant’s attorney.
    
      Johnson and Hopkine, contra.
   Per Curiam.

The declaration and rule to plead were served on the defendant, personally, (no attorney being employed,) on the 12th of May; and the 20 days had expired, when the default was entered, and bail was in. Notice of bail had not been given ; but the rule requiring notice, is for the benefit of the plaintiff; it does not lie in the mouth of the defendant to object that the plaintiff has waived the necessity of formal notice. This is a case in which the plaintiff went on to a default, before any attorney was employed, or what is the same thing, before notice was received of any attorney being employed for the defendant. There is nothing irregular in the proceeding on the part of the plaintiff, unless notice of bail was indispensable, under the 7th rule of April, 1796; but this is not a necessary construction of that rule, at least, in this particular case, The rule declares, that default shall pot be entered, “ if special bail is required in the cause, and although 20 days from the service of the notice of the rule to plead may have expired, until 5 days after notice of bail shall have been received.” The object of the rule is answered if 4 days of grace are given to the party, from the time of his appearance. Those 4 days were to he secured to him, at all events ; but this does not prohibit the plaintiff from dispensing with notice of that appearance. If the defendant has his 20 days to plead, after the service of the declaration and rule, and 4 days after he files the bail, he cannot complain. The 4 days here began to run from the entry of the special bail on record, which was on the 2 8th of May; and as the default was not entered until the 4th of June, the plaintiff was reguSar, and there being no affidavit of merits, the motion must be denied.

Motion denied.  