I do not think the defendant can_.be considered as having given notice of appearance under section 130 of the Code, and if he had not, he had not entitled himself either to a copy of the complaint or any further time to answer. The service of a copy of the complaint with the papers accompanying the order of arrest was the act of the plaintiff, and can not be considered as evidence of an intention to appear in the action on the part of the defendant. The judgment was regular, but as the defendant swears to merits, he may be let in on payment of f 10 costs of this motion, and the costs of entering and docketing the judgment and issuing and serving the execution.
The plaintiff must be at liberty to proceed upon his judgment and execution until sufficient money to satisfy the same comes into the hands of the sheriff, receiver, or other officer of the court, and then to be subject to the further order of the court.
Note.—On appeal to the general term, the decision of the special term was affirmed, with $10 costs, at Poughkeepsie, October 29, 1852.