Waterman v. Allen

1 Cow. 60

• Court: New York Supreme Court
• Decided: May 15, 1823
• Status: Published

Opinion

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 ;

(a) 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.

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.

Curia,

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

Rule accordingly.

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