Hill

The papers in this cttse simply show that the summons was served on the 27th day of July, 1857,.and that an answer was filed, signed by the defendant himself, on ttie 28th of August,.1867. It is admitted that the answer was filed before application for default or judgment.

It would perhaps be sufficient to ground the denial of this motion Upon the fact, that whilst it, in terms, asks for an order, against the clerk, based upon a. supposed dereliction of duty that would carry costs, he has had no notice of it. But as the question upon the ex parte application has been fully discussed in- the brief of the plaintiff’s counsel, and as the only effect of the argument has been to satisfy me that the^ motion should have been deified, even if regularly made, L may. as well take this occasion to dispose of this question of practice.

The authorities referred to are all from the State of New York, and *197 turn upon the construction of the peculiar provision of the code of that State. The 121st section of that code says that the .answer must be served within twenty days after the. service of a copy of the complaint, and the 201st section provides that judgment for the plaintiff may be had…