
    Jackson, ex dem. Wood and others, against Wood and Hopkins.
    ALBANY,
    Feb. 1827.
    Ejectment. The declaration and notice from the casual ejector were served on the 12th of October 1826 ; and eonsen(: rules exchanged between the attornies of the parties on the 14th of the same month. On the 3d of January, , , 1827, the plaintiff s attorney, without serving a new decía-ration, entered the defendants’ default for want of a plea. On the 1st of January, 1827, the defendants’ attorney had sent to the plaintiff’s attorney a stipulation to accept the declaration originally served in lieu of a new one,the names of the defendants to be inserted. On this stipulation a plea of not guilty was endorsed; but, this not arriving till after the 3d of January, the plaintiff’s attorney refused to receive it, on the ground of having previously entered the defendants’ default for not pleading. On the 6th of February, the defendants’ attorney gave notice to the plaintiff’s attorney, that common bail had been filed.
    A motion was now made, in behalf of the defendants, to set aside the default, and all subsequent proceedings, for irregularity; and 1 Dunl. Pr. 381; 2 John. Cas. 110; Col. Cas. 120; and 3 John. Rep. 141, were cited.
    jectmenti 'the hef'ore^he'^can enter a default, serve a new or altered declara-tl0n‘ After the con-cant rulo in a.
    
      S. M. Perkins and II. Stephens, for the motion.
    
      D. Wood, contra.
   Curia.

No new or altered declaration has in this case been served. This is, in strictness, neeessary. It has never been waived. The stipulation was not accepted. The default was, therefore, irregular; and the motion must be granted.

Motion granted,  