
    Conklin against Havens.
    NEW-YORK,
    May, 1810.
    Where plaintiff files common bail for the defendant, according to the statute, the declaration may be filed de bene esse, any time within the 40 days. Whether the declaration may be filed tie bene esse, at any time before bail is filed, or an appearance, and after the time allowed for the defendant’s appearance 1 Quiere.
    
    AFTER the time for the defendant’s appearing had expired, the plaintiff filed a declaration de bene esse, and entered a rule to plead, on the 28th December, 1809, and on the 13th February, 1810, filed common bail for the defendant, according to the statute, and entered a default for want of a plea.
    
      R. Riker,
    
    for the defendant, moved to set aside the default, and subsequent proceedings. He read an affidavit of the defendant, that he had a good and substantial defence on the merits ; and that he was arrested on the writ the 13th November, by the sheriff of Suffolk, and on the 18th November, retained an attorney, and about three weeks after, having learned the name of the plaintiff’s attorney, sent information of it to his own attorney, but who did not receive it, which was the reason that the plea was not filed.
    
      Riker contended, that, according to the English practice, the declaration could not be filed de bene esse-, -after the expiration of the time for the defendant’s appearance.
    
    
      
       1 Tidd's Pr. 411. 6 Term Rep. 548.
      
    
   Spencer, J.

It has been the uniform practice of this court, for many years past, to file the declaration de ^ene esse' at any ^me before an appearance is entered, or ■bail filed.]

At any rate, the party shows an excuse, swears to merits, and no trial has been lost, and he ought to be allowed to plead.

Wadsworth, contra, insisted, that as the 40 days had not expired, the declaration was regular, even according to the English practice. A regular default will not be set aside, though there is an affidavit of merits.

Per Curiam.

Filing the declaration de bene esse, within the 40 days, was regular; but we do not say whether it can be filed de bene esse, at any time, after the time for pleading has expired. Here is an affidavit of merits, and an excuse shown, and no trial lost; we will, therefore, grant the rule, on payment of costs.

Rule granted, 
      
      
         3 Caines, 134.
     
      
       8 Caines, 95.
     