Majority
p. 76Swartwout manucaptor of Sands, ads. Gelston, assignee of the sheriff of New-York.
Headnote
THIS was an application to flay proceedings on bail bond. The attorney for defendant in the original fuit, had given notice of retainer and of bail at the fame time, by leaving it at the office of plaintiff's attorney which was kept in his dwelling-houfe, when no perfon was prefent. It appeared that two terms had elapfed before the prefent fuit was commenced.It was infilled, lit, that the fervice of notice was regular, and to this point was cited 4 Burn, and Eaft, 464. And 2d, that the plaintiff had been negligent in delaying fo long to put the bail bond in. luit. Barnes’s Notes, 103.
The notice was not duly ferved. It fhould have been given to fome perfon in the hoitfe. To make a notice good, it mu ft be fhewn that every thing has been done to bring it homet to
p. 77
¿he party. The fervice rnuft firft be on fome per-fon in the office, and belonging there: if nobody is there, it rnuft be upon fome one in the houfe where the attorney refides or the office is kept; and ü nobody is there it may be left in the office. But as there has been a negligence on the part oí the plaintiff in not putting the bail bond in fuit at the iubfequent term, we will not now fix the bail for the irregulariy of the notice, which the prevalence of the yellow fever in the city at the time may in fome meafure excufe.
Wortmam for Defendant.
Coleman for Plaintiff, .
Let the proceedings flay on payment of coils, and receiving a juftification of bail if required.