
    Baker against Ashley.
    Where a cause is noticed for trial, and as an inquest, a copy of the affidavit of defence filed with the clerk of the sittings, must be served on the plaintiff's attorney; otherwise, tne defendantmust pay costs, ;in case the inquest taken by-default, is, afterwards, set -.aside,
    
      E. WILLIAMS, for the defendant,
    moved to set aside an inquest taken, by default, in this cause, at the last ¡sittings in New-York, and all subsequent proceedings, on the ground of irregularity.
    The inquest was taken out of its order on the calendar of causes; and the notice of trial was, that it would be taken as an inquest.
    It appeared that an affidavit of a good defence, on the merits, had been regularly filed with the Clerk of the Sittings, but that a copy of it had not been served on the plaintiffs attorney.
    
    
      E. H. Ely, for the plaintiff.
   Per Curiam.

The general rule of November term, 1808, requires, that a copy of the affidavit of defence should, also, be served on the plaintiffs attorney, in order to excuse the defendant from paying costs, in case the inquest is set aside ; and it was so decided in Cannon v. Titus. (5 Johns. Rep. 355.) The motion is granted, but it must he on the payment of costs.

Motion granted.  