Majority
p. 358Caines against Hunt. In Wendover v. Ball,[3] there was a sfmilar bail-piece, being one real and one nominal person, and a justification by the real person, and the court said it was no bail, and would have granted a rule against the sheriff, if he had not stipulated to put in additional bail. The practice of putting in such bail, the court said, had obtained, merely because no' one had opposed it. There was no exception in that case, and the bail was treated as a nullity. In England, one bail is considered as no bail, , and if treated by the plaintiff as a nullity, the Court will refuse to stay proceedings against the sheriff on the bail-bond.[4] And such, according to the decision in Wendover v. Ball, is the rule of this court. Though a different practice mav have prevailed, yet, being erroneous, it cannot be sanctioned by time, merely because it has passed without opposition. Here the plaintiff, by suing the bail-bond, made his - election to treat the bail-piece as a nullity.
Headnote
'fhe "plaintiff is real and subst™ tiai persons as special bail; but if one real and one fictitious person be put in tie plaintiff canpkce^s í nuilt as-gignm ení6 of the bail-bond; but the proper course is to ex-cepi to (he. sufliciency of thePOWERS, in behalf of the defendant, moved to set' as^e t^e proceedings on the bail-bond in this cause»' The writ in the original cause was returnable last Nov cm- ° berX&cm.. On the 12th December, special bail in the \ cause was filed in the clerk s office, and a notice thereof, with a notice of retainer by the defendant’s attorney, serve<l the same, day, on the agent of the plaintiff. The defendant’s affidavit stated also, that he had a good and substantial defence on the merits,
It appeared that the bail-piece contained the name of’ , ' one real and substantial person and John Doe.
The plaintiff regarding the bail-piece as a nullity, commenced the suit on the bail-bond, and on the 25th May last, entered a default, for want of a plea.
Caines, contra.
p. 359A bail-piece is an entire thing it cannot be good in part, and bad in part; and if a nullity, it may be wholly disregarded, and the plaintiff may proceed as if nothing had been done. said that in Ferris v. Phelps,[3] the court set aside the judgment on the bail-bond, because the plaintiff had neglected to except to the special bail. If the bail are insufficient, the proper course is to except to them.[4]
Pozvers, in reply,
This case is different from those cited by the plaintiff, from the English books, which were proceedings against the sheriff. Where insufficient or improper bail are put in, the regular course is for the plaintiff to except to them. He cannot treat the bail-piece as a pullity, and proceed on the bail-bond. 1 he proceedings in this case on the bail-bond were therefore, irregular.
Rule granted.