
    M’GEHEE and STAFFORD vs. VOILETT, ex’r. of, &c.
    
      January 15th.
    
    Where bail is required,a defendant-, if he can enter arr Appearance without being ferv-*d with procefs) mail do it in
    Office judge-ments ought not after the third day of the fuo ceeding term, to be fet afide as a matter of courfe 5 but ffiould* for good caufe fhewn.
    Á capias in debt was sued out of the Gallatin circuit court, by Voilett, executor of, &c. against both of the plaintiffs in error, requiring bail of them. It was served on the defendant, Stafford ; and an alias awarded against M’Gehee, but hot served. A judgment and writ of inquiry was had at the rules, in the usual way, against Stafford. On the second day of the succeeding term, special bail was entered in court for both of the defendants. When the süit was called, On the fourth day of the term, the plea of payment was offered by an attorney, in the name of both of the defendants. The court réfused to permit the plea to be filed as to both of the de* fendants, and directed the recognizance of special bail to be amended, so as to be an undertaking as bail for the defendant, Stafford, only. A bill of exceptions was taken to this proceeding, which stated that M’Gehee procured the bail to be entered for him and his co-defendant j and that the court refused the plea, and directed the alteration to he made, because they were of opinion that M’Gehee had not a right to enter an appearance, as he had not been served with process. The cause was brought here by a writ of error.
    Littell, for plaintiffs.
    — The inferior court, by refusing to permit the plea of payment to be filed, has prevented the parties from making a defence. Whenever a suit is depending against an individual, he has a right to enter his appearance, without waiting the service of process. To await that period, might, in many instances, endanger the loss of his evidences. Douds vs. Cox, in the old supreme district court, and Lane vs, M’Wherler, in this court, in 1798, shew that the whole term is to be taken as one day ; and Kyle vs. Conn, pr. dec. 218, has established the right of the defendant to set aside an office judgment, and plead payment, after the third day of the term.
    Talbot, for defendants.
    — -M’Gehee never was proper-, ly before the court. The first entry as to special bail, was erroneous, by a clerical mistake, and was properly corrected. M’Gehee had no right to enter an appear-. anee, without being served with process.
    But if the court erred in this, M’Gehee is not injured, for there is no judgment against him. Stafford might have plead separately, if he would ; as he refused to do so, he cannot complain that he was debarred of a just defence.
    The court had a discretion to refuse the plea, after the, third day, and they ought to have, done so, unless the , plea had been verified by affidavit. The bill of exceptions does not shew that the defendants made out a case on that day of the term, that entitled them to plead.
    Edwards, Ch. J. — We ought not,to put a construe-, tion on the law which permits office judgments to be set aside, on or before the third day of the next succeeding term, that would injure litigants, nor defeat the law itself . After that day, they ought not to be set aside as a matter of course; but should be set aside whenever a proper case is made out.
    Littell, in reply.
    — This was not what is commonly called an .office judgment. The cause stood on a writ of inquiry. It is decided in Cranch’s reports 
      , on a similar provision in the Virginia laws, that the defendant has a right to plead the first term, as a matter of course, when the cause is situated as this was. We now shew that the reason assigned by the inferior court for refusing the plea, was fallacious ; and this court cannot intend, that there was any other reason than what thev have assigned.
    The acts regulating the proceedings in chancery cases, provide, that after the bill is taken for confessed, the apswer may be received by the court, for good cause,. shewn . Under that act it has been determined that ihe production of the answer, without accounting for the delay, is sufficient to entitle the party to file it. The decisions on the act in question should be equally liberal.
    
      
      M ⅜7,92,7p’. 24, 5 26,1 Brad.221, V6,
    
    
      
      ^ 1 Ctaacl* ”7‘
    
    
      
      i7jgl7A^s4gf § 6, i Brad’, SSi1»
    
   Edwards, Ch. J.

at a subsequent day, delivered the following opinion'The record is not satisfactory to shew that the entry of special bail first made, was not made by mistake, as to M’Gehee. The court below have so considered it, and properly corrected it during the same term. On the point of M’Gehee’s right to enter an appearance, the court formed no conclusive opinion : but if he had a right, it should have been by his personal appearance in court, and directing it so to be entered. '

Judge Trimble.-

— In cases where no bail is requir-pd, the act of assembly authorises an attorney to enter an appearance for the defendant, after process is served. Perhaps in those cases an attorney might do it without the service of process. There is no such provision where bail is required. An appearance, where bail is required and process not served, should always be in person. If that were not the case, great dangers might be apprehended from unauthorised appearances. As M’Gehee did not thus enter his appearance, the inferior court decided right.

Judgment against Stafford affirmed. 
      
      ió A£ts of pb^°> j2o.’ ’
     