This application must be denied. If the writ had not been returned, the prolhonotary was not authorized, by the rule of court, to take the bail. His having taken it, then, furnishes some *90presumption that the return had been made. But it is unnecessary to rely upon this. The entry of a rule of reference is, in itself, a waiver of bail. Moulson v. Rees, 6 Binn. 32 ; Phillips v. Oliver, 5 Serg & Rawle 419; Nones v. Gilbaud, 11 Serg. & Rawle 9; Landis v. Bigler, cited in Mechanics Bank v. Fisher, 1 Rawle 347. A further decisive objection is the laches of the plaintiff iu not having made his application sooner. Four terms have elapsed since the return day of the writ.
Rule refused.