Myndert Lansing against David Horner

Myndert Lansing against David Horner. If to set aside a default, &c. a defendant rely on the having forwarded notice of retainer, &c to the agent of his attorney, and plaintiff's attorney swear he never has received them, the court will not grant the application, unless the agent swear the papers never come to hand. See Spencer v. Hulbert 2 vol. 374. S.P. EMOTT,movedto setaside a default entered 21st January last a judgment and execution thereon, upon the affidavit of the defendant swearing to merits, and, one from his attorney stating that notice of retainer and of special bailhad been in due time transmitted with the bail piece by the mail, to his agent in Albany, desiring him to serve them on the attorney of the plaintiff, and that he himself had never received a declaration. Bleecker, contra, read an affidavit, setting forth that he had never received any notice of retainer or bail, and that he had proceeded regularly. [MAJORITY — Kent, C. J.] Kent, C. J. As the papers were sent to the party’s own agent, why does not he shew that he has not received them ? This was his duty, and the not doing so is a palpable neglect. There is also a laches in not applying last term. The defendant can take nothing by his motion.