
    Stewart against Atkins.
    The capias ad respondendum, on which the defendant endorsed his appearance, was signed by O. M. Willey, atlorney ; and the notice of the rule (o plead, endorsed upon the declaration, was signed by the same attorney, and served personally on the defendant, who retained an attorney, who wrote and inquired of his agent whether any rule to plead had been actually entered, and received for answer that there had not. He, therefore, omitted to plead, and the plaintiff took judgment by default. On further search, it turned out that the rule to plead was entered in the name c tt ■ c ir,-,i i ' , , , . ot Hastings & Willey, who were partners, but whose business was done in the name of Willey, as attorney. The mistake, therefore, arose from the search being made in common rule book (W) instead of (H).
    
      A. Samson, moved to set aside the proceedings for irreg- . 16 & ulartty.
    C. P. Kirkland. contra.
    H & W, at-partners ^ssu6(1 a cap. ad, thT d°efendant endorsed his the name of ^ 8 filed**0"";! declaration, a“d rule^to Plead as on the motion of I-I tk W, and fhJreof in°the name of w. dant’s attorney searched; tlle common rule book (1'-,) found no rule entered, and neglected to plead, the rule bemcr enter— ed °m rule k°°ka was, therefore, want^’of f°a plea ; and be- " cause the defendant was misled, the court set aside the default, without costs.
   Curia.

For the reason, alone, that the defendant has been misled by this proceeding, we set aside the default, without Costs.

Rule accordingly.  