
    Thomas Waters, Appellant, against Ezekiel Travis, Respondent.
    
    A copy of the the”2 peUtion^of appeai, or to join m error, or notice thereof, must be served on tiie solicitor of the respondent, or on the attorney for the defendant in error; and in case no solicitor or attorney be employed, the service of the rule or notice must be on the respondent, or defendant in error, personally.
    Where a decree of reversal had been entered by default, without service of a copy, or notice of the rule to answer the petition of appeal, the decree was set aside for irregularity; although the decree had been entered up, and the record remitted.
    
    Whether this court will hear arguments ex parte, or enter a decree by default, as of course, muere. . .
    
    Where a respondent presented, a petition to the court, stating that he was poor, and unable to employ counsel, th e court assigned him counsel.
    FEBRUARY 26, 1811. Riggs, counsel for the ap* pedant, stated that the cause had been set down for hear;ng on this day, and that the respondent had not answer-o . r ecj the petition of appeal, pursuant to the rule entered r , for that purpose, according to the practice of the court; •and that as the respondent did not appear in person, or by counsel, to argue the cause, he prayed that the cause might now be heard ex parte.
    
    
      The Court. We do not hear arguments ex parte ; and the appellant must take a judgment by default.
    On motion of Mr. Riggs, it was thereupon ordered, adjudged and decreed, that the decree of the court of chancery be reversed; and that the bill of complaint of the said Ezekiel Travis, in the court of chancery, be dismissed; and that he pay to the appellant the costs in the court of chancery to be taxed, and that the record be remitted, &c.
    
      March 4. The petition and affidavit of the respondent were read, stating that he was poor, and unable to procure counsel to attend at Albany, to argue the causé in his behalf, &c.; that no rule or order of this court had been served upon him, and that he had received no notice of the proceedings on the part of the appellant.
    
    
      The Court, thereupon, ordered, that the decree which, had been entered by default, should be reconsidered; and that all further proceedings on the part of the appellant should be stayed, until the further order of the court. Counsel were also assigned for the respondent.
    
    
      March 18. J. Duer, for the respondent,
    
    moved to set aside the judgment by default, entered in this cause, on the ground of irregularity. He said it was, as he understood,, the practice of the house of lords, in England, to hear arguments ex parte, and not to give judgment, of course, by default; but there were other reasons why this court should not allow of such judgments ; for the constitution and rules of this court require the chancellor, in exrery case of appeal, and the judges of the supreme court, in every case on writ of error, to assign the reasons of their judgment.- This court, then, cannot reverse the judgments or decrees of those courts, without hearing the reasons on which they were founded.- And it might have been, that in this case, had this court heard the chancellor’s reasons, they would have affirmed the judgment',- even on the ex parte argument of the appellant} and he' insisted on the unreasonableness and injustice of the practice of giving judgment by default, as of course, in this court. It appeared, also, by one of the printed rules of the court, that where a defendant in error, of respondent, has not appeared by attorney br solicito!", that all rules and notices must be served on him in person.-
    
      RiggSj contra,
    Said, that the decree of reversal, which had been taken by default, in this cause, had been entered up, and the remittitur taken out of the court, before the order Was entered to stay further proceedings; .and he submitted, whether this court, possessing only an appellate jurisdiction, could now have atiy further power over the cause, when the record had been sent back to the court of chancery. In the case of Dean v. Secord, in 1800, this court decided) that after a remittitur was taken out of court, it was too late to correct any error, even in its own judgment; as the cause was then out of the power .of the court.- He read an affidavit, stating that he served a copy of the petition of appeal on the respondent's solicitor and counsel, in New-York, to whom he gave notice of the exhibiting of the petition to this court; and was informed by the counsel,that he should not attend this cdurt during this session ;• but could not learn, from inquiry, that the respondent had-employed any one to appear for him in this court.
    He said, that according to the practice of the court, as he had understood it, from the decision in the case of Nevin v. Belknap, and other causes, a copy or notice of the rule to answer the petition of appeal, or to join in error, need not be served. The rule of court which it# • # i»i had been cited, provided only for the case m which a service of a rule or order was requisite ; but in the present case, the service was not necessaryj and it was not the practice to employ an attorney or solicitor in this court.
   March 19.

Per Curiam.

Ordered, that thé decree, in this cause, be set aside for irregularity.  