By the exception, there was no bail; and of course the pleas became a nullity. (Adams v. Minton, 6 Cowen, 56.) The defendants could not plead till they had properly appeared, which, in this case, must have been. by putting in, and perfecting special bail. This case is sought to be distinguished from that cited,. by the circumstance, that here only Rowe was arrested; and special bail could not be exacted as to Hicks. We think this rather a reason why the plaintiff might hold him to greater strictness in the mode of his appearance. It is urged, that holding defendants to a complete appearance before the service of a plea shall have any effect, is inconvenient in practice. But it matters very little which way the rule is, when once understood. It is of more importance that it should be uniform. Adams v. Minion is in point; and the motion, so far as it is founded on irregularity, must be denied/
But on the ground of merits, let the default be set aside, upon payment of costs.
Rule accordingly.