
    COURT OF APPEALS.
    Waterman and others resp’ts agt. Whitney and others appel’ts. Isabella Van Epps agt. H. V. D. Van Epps.
    Unless the respondents can show some delay or inconvenience in not making the return in pursuance of Rule 2, or not serving the cases as required hy Rule 7, the defaults taken under those rules should be relieved against upon terms, in all cases where it appears that the appeals are brought in good faith.
    
      January Term, 1853.
    Each of these motions is to relieve the appellant from a dismissal of his appeal by default; the first in not procuring the return to be filed in twenty days after the appeal was perfected, and the other for a similar default in not serving printed copies of the case within forty days after the appeal was perfected.
    A. Birdsall, Att’y and Counsel for appel’ts in 1st case.
    
    Thos. G. Waterman, Attorney, and
    
    B. Davis Noxon, Counsel for respondents.
    
    H. V. D. Van Epps, Appellant in person, and
    
    Samuel Stevens, Counsel in the 2d case.
    
    S. D. Van Schaack, Attorney, and
    
    M. T. Reynolds, Counsel for respondents.
    
   By the Court, Johnson, J.

In the case of Dresser vs. Brooks (2 Comst. 559; also 4 How. Pr. R. 207), which was a default in not serving printed copies of the case, Bronson, J. • said, “ although respondent has been regular, appellant would be relieved on terms, if we had power to grant it.” In that case, however, relief was denied, the remittitur having been sent down. I do not see why the same rule should not be applied in these cases. In neither case has the argument of the cause been delayed for want of the papers, and in each, counsel swear that the appeal is brought in good faith, and with the expectation of success; and although that expectation may be disappointed, yet we can not now see that the appeals are frivolous, or brought for delay. Unless the respondent, can show some delay or inconvenience from the non service of the papers, I think these defaults ought to be relieved against in all cases where good faith appears, on terms, in analogy to the old rule for relieving against defaults for want-of a plea. In the first of these cases, the motion should be granted upon condition that within twenty days appellants cause the return to be duly filed, and pay the respondents $10 costs of'opposing this motion, or otherwise that it be denied with $10 costs.

In the last case the motion should be granted on condition that appellant serve the printed cases within thirty days and pay $10 costs to the respondent, otherwise that it be denied with $10 costs,  