96 abode, or places of business,67 and degrees or mysteries of the bail, in order that the plaintiff may have an opportunity of inquiring about them.99 It was held that a misnomer, by calling one of the bail Frances instead of Francis, was a ground of rejection. 100 It is not sufficient to describe the bail generally, as of a large town, without any further description, to direct the plaintiff.1 And it has been held, that a mistake in the number of the house in which the bail resides, is a ground of rejection.2 But when the plaintiff has had a long time to inquire after the bail, or has in fact found them, the bail will not be rejected on account of the generality of a description, which would otherwise have been fatal. As to the degree or mystery of the bail, the description should be such as not to mislead, and not too general; a servant is not properly described as a gentleman.* Shopkeeper is, in general, a sufficient description," No untrue description should be given of the bail. Where one of the bail was described as a housekeeper, and it turned out that his father was really the occupier of the house, the bail court, before which bail are added and justified in the king's bench," would not permit him to justify, nor grant time to add and justify another, without an affidavit repelling all intention to mislead.6 101 Description of bail, tiff may pro The plaintiff's attorney is not bound to know that special How plainbail is in unless the defendant give regular notice thereof, and ceed if no may proceed as if no bail were in ; he may therefore, if no notice. notice be served, although special bail has actually been filed, enter the defendant's appearance, and, after waiting the ordinary time, enter his default. And if the plaintiff's attorney receive notice from the defendant's attorney that special bail has been filed, he has a right to act upon such notice; and the court refused to set aside a default entered in such a case, for irregularity, although the attorney who gave the notice, had not been retained by the defendant, and although no bail had in fact been filed.10 But the plaintiff may waive the necessity of notice of bail, where bail has been actually filed, and proceed as if notice had been given."1 Exception to bail and notice of exception.] If the plaintif be not satisfied with the bail, he may except to them and thereby compel a justification. The exception should be endorsed on the bail piece on file, and notice thereof given, within twenty days after notice of bail having been put in;12 if it be not entered within that time the bail becomes absolute.1 Where an exception is entered to bail, and no notice of retainer of an attorney to defend is given, notice of such exception must be delivered to the sheriff or one of his deputies." Where a defendant in custody puts in bail, the bail must justify, although not excepted to, before he will be entitled to his discharge; in this and similar cases the notice of bail should also be accompanied with notice of justification; and it necessarily follows that bail put in under these circumstances must be two real persons. And the bail having justified and been allowed by the judge, a supersedeas should be obtained and served upon the sheriff, who must then discharge the defendant from custody.15 8 4 Cowen. Rep. 51. "16 John. Rep. 324. bail piece as It is a rule in the king's bench and has been recognised in Treating this court, that if insufficient or improper bail are put in, the nullity. regular course is for the plaintiff to except to them; he cannot treat the bail piece as a nullity, and proceed on the bail bond.16 Consequently, where the bail piece contained the name of one real person and John Doe, and the plaintiff regarding it as a nullity, commenced a suit on the bail bond, the court set aside the proceedings for irregularity." But in the common pleas, if an attorney be put in as bail, the bail are regarded as an absolute nullity; no exception is necessary, and the plaintiff' may take an assignment of the bail bond or proceed against the sheriff. 18 In a case in this court,19 cited before,20 where an attachment was granted against the sheriff, on the ground that an attorney could not become special bail, the bail had first been excepted to. And it has been held that it cannot be urged as a ground for quashing a writ of error, that one of the bail in error is an attorney.21 chief. Waiver of bail or of exception.] The delivery of a declara- Declaring in tion in chief, before special bail put in, is holden to be a waiver of bail; and after bail is put in, or after notice of bail although the bail piece be not actually filed, and before execption, it is a waiver of exception.22 But the plaintiff may declare de bene esse, or conditionally, provided good bail be put in, or the bail already put in do justify.23 bail is in. It is well settled, both in the English courts and our own, Plea before that if the defendant plead before bail is put in and perfected, the defendant may treat the plea as a nullity, and sign judg 16 8 Johns. Rep. 359. Doug. 466. n. 1. 2 East. Rep. 181. 178 Johns. Rep. 358. 19 1 Bos. & Pul. 356. 2 Bos. & Pul. 49. 564. 1 Taunt. 162. 164. 19 15 Johns. Rep. 535. VOL. I. 52 20 Ante p. 401. 21 1 Wendell. Rep. 35. 229 Johns. Rep. 72. 1 Tidd. Pract. 279. 1 Archb. Pract. 105. et vide Barnes 92. 23 1 Tidd. Pract. 279. How service of plea may be made good. ment, even although the bail were afterwards to justify, 24 except in the case of a plea in abatement.25 But the doctrine in the English courts that acceptance of a plea is a waiver of exception or of bail before exception, does not seem applicable here.26 If bail, after having been excepted to, do not justify within the time required by the rules of the court, they cease to be bail, and the plaintiff cannot then hold them by waiving the exception; his course is to file common bail, or as the practice now is, enter a common appearance, and proceed under the statute;28 and this he may do, though he has, before entering an appearance, refused a plea.29 Where a plaintiff received a plea before he had excepted to the bail, and afterwards excepted and the bail justified; whereupon the plaintiff without waiting for a new plea, on the same day served a notice of trial and took an inquest; the court, on motion on the part of the defendant, set aside the proceedings for irregularity; they say that the plea was a nullity, and that though in such case " the plaintiff's attorney may return the plea, on the ground that the bail is not perfect, yet there is no need of this ceremony. The court intimate in this case that the plaintiff might have made the service good by receiving the plea specially, and giving notice thereof to the defendant's attorney.31 1130 It appears from these cases, that the service and acceptance, without express notice of a plea before special bail are perfected, though they have not at the time been excepted to, is a nullity, of which either party may take advantage; and that Exception after bail have been excepted to, the exception cannot in any manner be waived by the plaintiff, nor it would seem by consent of parties; for the bail, if they do not justify, may move to have an exoneretur entered upon the bail peice.$2 cannot be waived. riff's bail be above. If the bail to the sheriff become bail above, the plaintiff is not When sheat liberty to except to them after he has taken an assignment comes bail of the bail bond; for by so doing he has admitted them to be sufficient; and after excepting, he cannot take an assignment of the bail bond, for the same reason that he cannot except after taking an assignment, the two acts being inconsistent.34 Adding bail.] Where the bail put in do not mean to jus- Time, tify, others should be added to the bail piece, within the time allowed for their justification; and if there be not time enough, the defendant's attorney may obtain a judge's order for further time.$5 It seems that if one or both of the bail who come Fresh bail up to justify, be rejected, other bail cannot be added instead of them, but must be put in as fresh bail, and notice given accordingly. It is not necessary to except to added bail, if the original bail have been excepted to; for they must justify, whether excepted to or not, and for this reason the notice of their being added is included in the notice of justification.58 $7 name off If the defendant be likely to have occasion for the testimony striking of one of his bail, who, as being interested, is not a competent bail piece, witness in the cause for his principal, he must make an affidavit that such bail will be a material witness for him, and thereupon move the court that his name be struck out of the bail piece, on adding and justifying another in his stead; which the court will order on an affidavit of service, if no sufficient cause be shown to the contrary.39 This is often done at the circuit, without any previous application to the court.40 33 2 Saund. 60. c. 6 Bac. Abr. 180. 6 Mod. 122. 7 Mod. 62. 117. Salk. 97. pl. 1. and see 5 Cowen. Rep. 287. 345 Cowen. Rep. 287. 35 1 Tidd. Pract. 281. 36 5 Barn. & Ald. 704. 1 D. & R. 350. 1 Archb. Pract. 107. 37 Barnes. 74. 38 1 Archb. Pract. 107. 39 Whatley vs. Fearnley, cited Tidd. 282. Phillips on evd. 46. 8 Johns. Rep. 407. 40 1 Dunlap. Pract. 178. |