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 *57be 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.