
    Dizen and Wife against Bates, late Sheriff, &c.
    ALBANY,
    Feb. 1811.
    -Where the defendant, after an appearance, entered a rule in vacation, to declare before the end of the next term, which was served on the agent of the plaintiff’s attorney; it was held, that the service of the notice of the rule might be at any time before the term, and if the plaintiff did not declare before the end of the t*; «n, hia default might be entered, though forty days had not elapsed from the time of serving the nc. tice on the agent.
    A JUDGMENT of nonsuit having been entered in this cause, for not declaring,
    
      Sill, for the plaintiff, now moved to set aside the judgment, on the ground of irregularity.
    
      Notice of the rule to declare before the end of tliÁ then term, was served on the agent of the plaintiff’s attorney, on the 24th óf July, and the plaintiff’s attorney ■ swore that he did not receive it in time to declare before tjle eXpiration of the rule, and that he did not think a default would be entered before the expiration of forty days, the service being on the agent in vacation. The default tvas entered on the 29th of October, and the judgment of nonsuit on the 16th of December. -
    
    
      Rodman, contra.
   Per Curiam.

The motion must be denied. The proceedings on the part of the defendant have been regular. The rule is explicit, that the defendant, having duly appeared, may, at any time thereafter, take a rule against the plaintiff to declare before the end of the term next following, after service of the notice of the rule. Where the service of the notice is at any time before the term, the plaintiff is in default, if he does not declare before the end of the term.

Motion denied.  