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.
*62Pluenix, 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.