Majority
p. 56Adams against Minton. UTICA, Aug. 1826.
Headnote
A plea served before special bail is perfected, in a bailable action, is a nullity; and does not become good by a subsequent justification ; unless it was received de be-ne esse; and notice of this given to the defendantMotion, by the defendant, to set aside the plaintiff’s verdict for irregularity.
The action was a bailable one. The defendant put in R. Farr and John Doe as bail; and sent a plea of the general issue to the plaintiff, the 24th of April last. On the BOth, the plaintiff gave notice of exception to the bail. The defendant then gave notice of moving for an order to mitigate bail; and that two substantial persons would justify as such, on the 20th day of May. On that day, the amount of bail was fixed by the commissioner; and a justification took place accordingly; whereupon, without waiting for a new plea, the plaintiff immediately, on the same day, served notice of trial, for the following June circuit; when he took an inquest. This was on the 9th of June. On the 30th of June, the plaintiff was served by the defendant with a copy of the former plea.
J. II. Ostram, for the defendant,
now insisted that the first plea was a nullity, on the ground that the bail had not become perfect when it was served.
A. Dana, contra.
It is impossible to sustain this proceeding. Here was no bail for any substantial purpose, when the first plea was served. This has been decided over and over. (2 Cowen, 622. 1 id. 54, 60, 226.) In the two last cases, the plaintiff ⅛ attorney returned the pleas, on the ground that bail was not perfect; but there is no need of this ceremony. Whether he do it or not, the plea must
p. 57
be regarded as a mere nullity ; and the plaintiff may take his default, even after the bail have justified, (1 Archb. 112, 4 T. R. 578,) except in the case of a plea in abatement. ( 1 Archb. 112. 2 East, 406.) The justification does not make the plea good in the plaintiff’s hands ; nor will his filing common bail have that effect, after he has refused a plea for want of special bail. (1 Cowen, 226.) The course of the plaintiff was to wait the four days after justification ; and then take his default for want of a plea, according to the 7th gen. rule of April term, 1796. This ease is the stronger, inasmuch as the plaintiff virtually declined the plea, by excepting to the bail, If he had intended that it should become good without any new service, he should have received it specially, and given notice of this to the defendant’s attorney.
Motion granted with costs.