
    Mulkins & Bennett, Overseers, &c. vs. Clark.
    An appearance by Defendant in a cause, such as serving a general notice of retainer waives all irregularity in the process by which the suit is commenced, t Cow. 366; 2 Eoward’s Pr. Sep., 241 and 242.
    
      April Special Term, 1847.
    
      Motion by Defendant to set aside capias ad respondendum and subsequent proceedings.—This suit was commenced by capias, to recover penalties under the statute for selling intoxicating liquors without license. The writ was personally served on Defendant on the 16th of January last; on the 19th of January, Defendant’s attorney served a general notice of retainer for the Defendant in the suit upon Plaintiff’s attorney, who thereupon entered Defendant’s appearance. On the 5th of February, Plaintiff’s attorney served on Defendant’s attorney, copy declaration in the cause, with notice to plead.
    
      Defendant’s attorney, on the 24th of February, served the papers for this motion, which was made on the ground that there was no endorsement on the writ of a reference to the statute, as required in actions for penalties, and stated that he was not aware of the omission until the 25th of February. The time to plead had not expired, and no steps had been taken by Defendant, except to serve notice of retainer, which Defendant’s attorney supposed was necessary, in order to learn what the suit was in fact brought for.
    Defendant produced the affidavit of Bennett, one of the Plaintiffs, stating that the suit was commenced without his authority or consent, and against his wishes, and was not prosecuted by any person or persons in the name of the Overseers, by giving a bond, &c., under the statute,
    The Plaintiffs’ attorney answered, by saying that the suit was commenced on the retainer, and employment of Mulkins, who stated that he had conferred with Bennett in relation to commencing the suit, and Bennett said he would not consent nor object to it, but leave it to the discretion of Mulkins.
    J. A. Spencer, Defts Counsel. J. H. Baker, Defts Atty.
    
    R. W. Peckham, Plffs Counsel. L. S. Chatfield, Plffs Atty.
    
   Bronson, Chief Justice

Denied the motion with costs, on the ground that the Defendant had appeared generally in the cause, and by so doing, waived all irregularity in the process, (7 Cow., 336 ; 2 How. Prac. Rep., 241 and 242.)  