¶1The fact, that a copy of the bill was enclosed by letter to the solicitor of the defendant, and an answer to the bill requested, is an admission of the *367appearance of the defendant, or, at least, a waiver of the formal entry of it with the clerk, and, consequently, the defendant was to be deemed rectus in curia, and entitled to be ruled to put in an answer, before the bill was taken pro canfesso, against him. The subsequent proceedings, on the part of the plaintiffs, were, therefore, irregular. As Lord Hardwicke observed, in Floyd v. Nangle, (3 Atk. 568.) “ If there is an irregularity in the proceedings of the plaintiff, and the plaintiff insists upon the strict default of the defendant, as the Courts of law say, it is very necessary a person insisting upon the rigor, should hit the bird in the eye.” But if this irregularity did not exist, it would follow, that the proceeding in July last, to advertise the land for sale, and the sale in September, and the confirmation of the report in October, were all irregular, because the defendant died in June, and the suit had not been revived against his children and heirs.
¶2The motion is, accordingly, granted, so far as to set aside the order taking the bill pro confesso, and all the subsequent proceedings; and the answer is to be deemed duly put in at the time it was filed. No costs of the proceedings set aside, or of this motion, are allowed to either party, as against the other.
¶3Motion granted.