
    Dole against Young.
    NEWYORK,
    May, 1814.
    The plaintiff is not out ot court, if he does not declareinayear; fend'ant wishes to hasten the put him’out of court, "he must enter a rule ciare’^or °he ‘ nonprossed, and until a judgment of ta7ned°S the^' plaintiff may time!reatany
    FOOT, tor the defendant, moved to set aside the default, and 7 all subsequent proceedings in this cause, for irregularity,
    . , , , , . _ The capias ad, respondendum was returned m January term, ****^, with the defendant’s appearance endorsed thereon,
    The declaration, which was for a libel, was filed the 21st An-gust, 1813, and the default of the defendant, for not pleading, was entered on the 11th September following, and an interlocutory judgment the 22d October last, on which a writ of inquiry of damages had been executed.
    
      Foot contened that the plaintiff,
    by not declaring within a year after the defendant’s appearance was entered, was out of court; and that such was the rule of the court of IC. B. in England.
    
    
      Buel, contra,
    insisted that by the practice of this court the proceedings were regular. The defendant, if he wishes to hasten the plaintiff, or to put him out of court, may serve a rule to declare, or be nonprossed; and until such judgment of non-pros has been obtained, the plaintiff has a right to declare at any time.
    
      Foot, in reply,
    said, that even if the court should not adhere to the English practice, yet, as the plaintiff himself had been .guilty of such great delay, there ought to have been, at least, a personal service of the notice of the rule to plead on the defendant, and not by putting the notice up in the clerk’s office, as in other cases.
   Per Curiam.

We have not adopted the rule of the English court of K. B. that the plaintiff is out of court if he does' not declare in one year after the defendant's appearance. But, there being no attorney employed in this case, the copy of the declaration and notice of the rule to plead, ought to have been served oii the defendant personally, or by leaving them at his usua place of abode. The proceedings must, therefore, be set aside

Rule granted, 
      
       See S. P. Cheetham v. Lewis, (5 Caines' Rep. 256.)
     