#### Burr *against*Waterman and Wells.

On film»writ of error »nd return, m this Court, the ror instead of *fadasSqmreTxe-*interesa rule naem>erPaffiign tyTM? sVr'that his default be entered ; and serves a *notice*on the plaintiff in error, or his attorney, that the writ of error has been returned and filed, and a rule has thereupon been entered that the plaintiff assign errors, &e.

IN ERROR, to the Court of Common Pleas, or Mayor’s cour(; cf the City of *New-York,*The writ of error.had . - been returned with the record, certified by the clerk of the Court-below,, without any rule or notice for that ¡purpose. On filing the writ and record, a rule was entered ip the book of rules, kept by the clerk of this Court, that the plaintiff in error assign errors in twenty days, or that his default be entered. Notice-of this rule was duly served on *509the attorney for the plaintiff in error, on the 27th of *Qctor her,*and no assignment of errors having been made and served, a default was entered on the 17th of *November.*

*Burr*now moved to set aside the default, for irregularity. He contended, that as the rules of this Court were silent as to the mode of proceeding in such cases, the practice of the Court of *K. B.*in *England,*was to govern. After bail has been put in, the defendant in error enters a rule that the plaintiff in error certify or transcribe the record, in eight days. (2 *Sellónos Pr.*374. *Richardson^ s K. B. Pr.*328.) A rule for the plaintiff to transcribe the record, is necessary, as the defendant cannot do it. (1 *Wils.*35.) After the record is transcribed and returned, in order to compel an assignment of errors, the defendant in error must take out; a writ of *scire facias -quare executionem non,*and cause it to be returned *scire feci,*or *nihil*to an *alias scire*facias; and on this return, the defendant may enter a rule that the plaintiff appear and assign errors in four days, or be non-prossed. *(Richardson's K. B. Pr.*329. 2 *Sellouts Pr.*376.) This rule is to bring the plaintiff into Court, as he has no day given by the writ of error. It is irregular to rule the plaintiff in error to assign errors, before the expiration of the rule to appear to the *scire facias.*(6 *Term Rep.*367.) The only way of proceeding, in order to non-pross the writ, is by serving a rule on the *scire facias,*and then a rule to assign errors. *{Burr. Rep.*17Í2.)

———, contra.

*Per Curiam.*

It has been the uniform practice in this Court, for a great many years, instead of issuing a *scire fa-cias quart execulionem non,*according to the *English*practice, to enter a rule, on the return of the writ of error, that the plaintiff in error'assign errors in twenty days, or that his default be entered. The defendant in error gives *notice*to the plaintiff in error, that the writ has been returned and filed, and that thereupon a rule has been entered, that the plaintiff in error assign errors, &c. This notice must be served on the plaintiff in error, or his attorney. . This we *510consider to be the settled and established practice of this *Court;*and there has, therefore, been no irregularity on the part of the defendant in error. But as there appears to have been a misunderstanding as to the practice, we shall grant the motion to set aside the default, without costs.

Motion granted accordingly.