
    Clement against Crossman.
    Where a writ ot error is brought on a judgment Tommo^pieal, ien^utth'f court, the sersignment of errors, and notice of rule to join in served mildrnt fher°hy5e]ivcrj.'jjV^m^ieaving l!iem at his dwelling-house, or in such, other mode, as the court might speder'the'^iveumcase.°eS °f tIle
    A service of the notice, hy affixing it up in the clerk’s office, is not sufficient.
    Though a party had not a regular notice in writing of a writ of error being brought, or of a judgment of reversal; yet if lie was informed and sufficiently apprized of the pendency of the writ of error, to have pleaded in time, and of the judgment of reversal, hy default, in season, to have moved the court, at a former term, to set it aside, it is a laches, and the judgement will not be set aside, after a term has so intervened.
    IN error, from the court of common pleas of Genessee 7 - , county» A judgment was obtained by Cross?nany thedefendant in error, against Clement, in the court below, in June, 1808, on which a writ of error was brought, and a judgment of reversal by default, for not joining in error, was obtained in this court, in August term, 1810.
    A motion was now made, in behalf of the defendant in ..... r , , . , error, to set aside the judgment ext reversal, which was submitted to the court, on affidavits.
    The attorney of the defendant in error swore, that he was attorney for the plaintiff in the court below, and proseented the suit for him to judgment; that he is not an v ’ # attorney of this court; and never received any notice of . . . the writ of error being brought, nor any notice of a rule to join in error. The defendant in error also swore, that he never received any notice of a writ of error brought on the said judgment, nor any notice of a rule to join in errQr -n t^-s cause. that he had lately been informed of the judgment of reversal obtained in this court, but not in time to make an application to set it aside before the present term.
    The plaintiff in error made affidavit, that he informed the defendant in error, several days before the last November term, that the judgment had been reversed; and the defendant in error had notice, more than a year before, that a writ of error had been brought in the cause. That no attorney having been employed by the defendant in error in this court, the copy of the assignment of errors, and notice of rule to join in error, were served, by fixing them up, in a conspicuous place, in the office of the clerk of this court, at Utica. That there being no joinder in error, a default was entered, and afterwards, the rule for judgment of reversal was entered the 15th of August, 1810; that the writ of error was sued out in November, 1809, and the attorney of the defendant in error, in the court below, had notice that such writ of error was brought, and endeavoured to dissuade the plaintiff in error from prosecuting it.
   Per Curiam.

As no attorney was employed on the' part of the defendant, the rule to join in error ought to have been personally served on the defendant, either by delivery to him, or by leaving it at his dwelling-house, or by some other mode of service which the court might specially direct, under the circumstances of the case. This was the practice adopted in Hardenbergh v. Thompson, (1 Johns. Rep. 61.) which was on a certiorari, and the reason of it applies equally to this case, as the party ought not to lose a right acquired by his judgment below, until he has had a reasonable opportunity to be heard. But the principal point here is, whether the defendant is not too late in his application, and whether he lias not waived his right by his laches. He says he did 3 . . ... not hear of the reversal in time to make application before last term, and that he never received any notice of error being brought; and his attorney below says the same thing. These affidavits are rather loose and equivocal. What the defendant and his attorney mean by notice in this case, is not certain. If they mean a direct regular notice in writing, that may not have been given, and yet they may have been sufficiently apprized in season of the pendency of the writ of error to have enabled the defendant to have pleaded, and such, it is very probable, was the fact; for the plaintiif swears, that the attorney below had notice from him, as early as November, 1809# of the writ of error brought, and that the defendant had notice as early as March, 1810. The plaintiff also swears, that before the last November term, he gave the defendant notice of the reversal of the judgment, and had a particular conversation with him upon the subject; and a th:; d person also swears, that in November last the defendant admitted to him his knowledge of the reversal of the judgment.

Here was then a laches, in not making application at the last February term, and it is one to which the defendant ought to be held.

Motion denied.  