The decision of this motion in favor of the sheriff, was predicated of the fact that the notice of appearance, served on his behalf, was inadvertent and a clear mistake, no authority having been given therefor by him. The proofs submitted upon the hearing, fully j ustify this conclusion, and the order appealed from, is right. It may be that the process should have been served upon the sheriff; but if that ceremony was not necessary, and a service upon the under-sheriff was sufficient, no injury results to the plaintiff. Whatever rights he secured by that proceeding remain. In the case of Becker v. Lamont* the decisions bearing upon the exercise of the power to relieve a party from an appearance, put in on his behalf, are collated and criticised; and it will be found that the courts have exercised the authority vested in them, even in relation to stipulations made in open court.†
The order appealed from, seems to have been made on proper and sufficient grounds, and it should therefore be affirmed.
Ordered accordingly.
13 How. Pr., 23.
The Hiram, 1 Wheaton Rep., 440; 1 Hoff. Ch. Practice, 28, 29.