Sheldon against Cumming

Sheldon against Cumming. Though an attorney be sued by capias, of6 all^subse quent papers should be on him or his agent, as in ordinarv cases. And service of papers, Toy affixing the clerk’s ^office* is irregular, fault taken up-declaration^ "a tiiis manner, Was set aside, The defendant, an attorney of this Court, was sued1 by cap- ^ . . . ias, &c. on the" return whereof, the plaintiff not receiving anJ n°dce °f retainer, proceeded by filing and fixing his papers in the Cleik’s office, to take his default as against a . • common which Cumrhing, now moved to set aside as irregular." ° S. A. Foot, contra, said, that m a proceeding by capiaé aga’nst an attorney, the course is as in ordinary cases, unless" the attorney gives notice that he means to defend, as was in fact done in Brown v. Childs, (17 John. 1.) In the President, ^zc" of Bridgeport Bank v. Sherwood, (16 John. 43) the proceeding was by bill. The attorney ought to give notice,’ that he means to defend, if he wishes service upon his agent, or upon himself, as attorney. He may have waived his privilege hy ceasing to practice; and it cannot- be known to the opposite party in what manner he may elect to defend, unless notice is given. [MAJORITY — Curia.] Curia. The case of Brown v. Childs, (17 John, 1) settles the practice. The service should have been on the attorney, or his agent, as in ordinary cases; Motion granted.-