Waterman v. Allen — 1 Cow. 60

Majority

p. 60

Waterman & Wells against Allen, impleaded with Allen.

Headnote

Where hail tofmdnegiect with''nfy’ the regular time,

they are asno bail; and the plaintiff may file common bail, and proceed under the statute. The plaintiff is nothound to accept a plea, until the bail have justified. And though &e refuse a plea on this ground, he may afterwards file common hail, and enter a default.

Phcenix, moved to set aside default, &c. for irregularity. The declaration was filed and served de bene esse, a rule to P^ea<^ entered, and notice thereof given, November 26th,

p. 61

1822. The 24th December following, special bail, (one real and one nominal) was put in, and notice thereof, with a copy of the plea, served on the plaintiff’s attorney. The same day, the copy of the plea was returned to the defendant’s attorney, an exception to the bail entered, and notice thereof served, January 16th, 1823, the plaintiff’s attorney filed common bail, and entered a default. January 20th, the defendant put in other bail, notice whereof was given to the plaintiff’s attorney, with a copy of the plea, and a notice of justification, for the 251 A'of the same month, before the Recorder of New-York. The copy of the plea was again returned by the plaintiff’s attorney, who told the defendant’s attorney, that default had been entered. The special bail justified under a subsequent notice, in April last, previous to which, there had been several notices of justification, the costs of which were unpaid. Copies of the affidavits of justification, the order of allowance of the bail, with a copy of the plea, were again served ; but the plaintiff’s attorney refused to receive the plea.

I. M. Ely, contra, said the plaintiffs, having waited double the time allowed for giving special bail, were entitled, under the statute, to file common bail, and enter a default. (1 R. L. 324.) Accepting a plea would have been a waiver of special bail, and the plaintiffs had a right to refuse it, as they had done. The bail having been excepted to, and not justifying within the proper time, are as no bail ;^[1] and the plaintiffs might have proceeded against the Sheriff or upon the bail bond. (Ferris v. Phelps, 1 John. Cas. 249, S. C. Col. Cas. 95. Caines v. Hunt, 8 John. 358 .)

Again ; here had been several notices of justification, which we were entitled to the costs of opposing, before the defendant had a right to justify. (The King v. The Sheriff of Middlesex, 1 Taunt. 56.) So that, in any point of view, here was no special bail, and we had a right to file common bail, and proceed as we have done.

(a) (a) Jones v. Tubb, 1 Wits. 337. Gould et al. v. Holmstrom, 7 East, 580. People v. The Judges of Onondaga, ante, p. 54.

p. 62

Pluenix, in reply, said that, at any rate, when common bad was filed, the reason for refusing the plea had ceased,. and the plaintiffs had, by their own act, made the first service a good one. Before proceeding to a default in such a case, he thought the plaintiffs ought, at least, to be holden to the English practice of demanding a plea.

The plaintiffs are regular, but as there is an affidavit of merits, we grant the motion on payment of costs.

Rule accordingly.