
    Vanduzen against Weller.
    Where a cause is removed from the court of common pleas into this court, by habeas corpus, the plaintiff cannot, as in ordinary cases, enter a rule to plead in this court, and after 40 days file bail for the defendant, according to the statute; but must enter a rule for the appearance of the defendant in this court, or that a procedendo issue; and if an appearance is not entered in 20 days, take out a procedeudo.
    FISK, for the defendant,
    moved to set aside the default for want of a plea entered in this cause, and all the subsequent proceedings, for irregularity.
    The suit was originally commenced in the court of common pleas of Orange county, and was removed into this court by a habeas corpus, returnable at the last August term. On the 7th August, a copy of the declaration in the cause, in this court, with a notice of a rule to plead, was served on the defendant’s attorney. After the expiration of forty days from the service of the notice, the plaintiff’s attorney filed common bail, according to the statute, and entered a default for want of a plea.
    
      Fisk contended,
    that by the 10th rule of April term., 1796, the defendant’s attorney ought to have been served with notice of a rule to appear in 20 days, or that a procedendo issue; and if he had not then appeared and put in bail, a procedendo might have been awarded. In cases where causes are removed by habeas corpus to this court, there is no other mode of proceeding; and the plaintiff’s attorney cannot file common bail for the defendant, according to the statute.
    
      Ross, contra.
   Per Curiam.

The rule of practice is explicit. On the return of the habeas corpus, the plaintiff’s attorney must enter a rule for the appearance of the defendant in twenty days, or that a procedendo issue, and serve a notice of the rule on the defendant, or his attorney. He cannot proceed, as if the suit was originally commenced in this court, and file bail for the defendant, according to the statute.

Rule refused'.'  