to be sued jointly; consequently, the omission of a party who ought to have been a co-plaintiff is a ground of nonsuit; but the omission to make a party a defendant can only be taken advantage of by plea in abateI think this declaration is clearly bad.

ment.

BAYLEY J. I am of the same opinion. The declaration in this case is founded entirely upon promises to the assignees, and therefore they ought all to join.

HOLROYD J. In the case of bonds or deeds, it has been held, that the obligees or covenantees, if alive, ought to join in the action, and if dead that fact should be averred in the declaration. (a)

BEST J. concurred in the opinion of the other Judges.

1819.

--

SNELLGROVE

against HUNT.

Rule refused.

(a) 5 Rep. 18. b. Slingsby's case.

IN BAIL COURT.-COULSON against SCOTT and Wife. Saturday,

IN

N this case bailable process had been issued against the husband and his wife for the debt of the wife before marriage; and the husband only was arrested, and was now in custody.

Jan. 30th.

In action against

husband and

wife, when the

husband alone

has been arrest

ed, bail may justify for him only on his filing common bail for his

Chitty moved to justify bail for the husband only, wife. which was opposed by Thessiger, on the ground that in an action against husband and wife where the husband only is arrested, he shall put in special bail for his wife as well as himself, according to the note on rule East. 5 Geo. 2. But Chitty submitted that it was only necessary to put in special bail for husband and wife where both are arrested, according to the practice laid down

1819.

COULSON against SCOTT.

in Crooks v. Fry and wife, 1 Barn. and Ald. Rep. 165. and in the present case the husband alone had been arrested.

BEST J. said that he would consult the other Judges; and afterwards in full Court stated that it was sufficient for the bail to justify for the husband only, but that he must file common bail for his wife, and that the rule for the allowance of bail must be drawn up conditionally accordingly.

Saturday,
Jan. 30th.

Time not al

lowed to correct

RUFFORD'S BAIL.

WALFORD moved in this case for leave to amend the notice of bail, by altering the name of one of notice of justi-the bail from Appleby to Uppleby, the latter being the

misnomer in

fication of bail

by habeas

corpus.(a)

right name. But the Court being informed that the bail was by habeas corpus, and as the habeas corpus

(a) In case of bail by habeas corpus, or writ of error, time to justify is not in general allowed for amending a defect in the notice of bail, &c. on account of the delay. Tidd, 6th ed. 269. Darcey's bail upon habeas corpus, Hil. T. 23d Jan. 1817. E. Lawes in support of bail. V. Lawes in opposition. Per Abbott J. The description of bail as a gentleman, when it appears he has recently been a butcher and is about to set up again in that trade, is insufficient, and though the bail have been found, yet the objection is not aided. And as the bail are on a habeas corpus, time cannot be granted. Ward v. Johnson, in the Bail Court, Mich T. 6th Nov. 1818. Coram. Holroyd J. Notice of bail and justification was served at a quarter before eight on the 4th of November, by putting through the door of the office of the plaintiff's attorney, and the affidavit of the service of notice of justification stated this fact, and that the defendant's attorney on the next day applied to the plaintiff's attorney to acknowledge the receipt of the notice, but that the latter refused to admit the same, whereupon defendant's attorney served another notice for this day; but the second notice being served too late, Chitty moved for time, but Mr. Justice Holroyd ruled, that as this was a case of bail on habeas corpus, no time could be given. Atkins' bail in error, Easter Term, April 1815. Espinasse moved for time to justify the bail, but per Bayley J. time is never allowed to justify bail in error.

was not annexed to the bail-piece, said that the practice was not to allow time to amend irregularity in suoh case.

1819.

RUFFORD'S
BAIL.

SAUNDERS'S BAIL.

Saturday,

Jan. 30th.

THE affidavit of service of notice of justification in Service of notice this case only stated that the notice was "left at the chambers of the plaintiff's attorney by putting it into the letter-box, no person being there to receive it."

upon some per

BEST J. The notice must be served son in the office of the attorney, and the objection cannot be cured without an acknowledgment that it was received.

of justification by leaving it at chambers of plaintiff's attorney is bad.(a) But if the plaintiff's attorney has since ac

knowledged the receipt, that will suffice. (b)

(a) See the next case. The rule of K. B. Hil. T. 8 Geo. 3. directs that an alphabetical book shall be kept in the Master's office in K. B. Walk, to be inspected without fee; and that every attorney practising in this Court, and residing in London or Westminster, or within ten miles, shall enter his name and place of abode, or other proper place in London or Westminster, where he may be served with notices, &c. and that notices, &c. which do not require a personal service shall be deemed sufficiently served on such attorney if a copy be left at the place lastly entered in the book with any person resident at or belonging to such place, and that if the attorney neglect to make the entry, then fixing up the notice in the Master's office shall be deemed sufficient service. By rule M. T. 41 Geo. 3. K. B. it is ordered that no rules, orders, or notices in any cause or matter depending in this Court shall be served, or any proceedings or pleadings delivered or served later than ten o'clock at night, and that any service or delivery thereof after that hour shall be null and void. 1 East. 132. Tidd, 6th ed. 62. In C. P. services must be made before nine o'clock. Chapell v. Parker, 2 Taunt. 48. 3 Taunt. 234. Arrowsmith v. Ingle.

Notice of bail was

(b) Bailey v. Davy. In Bail Court, 6th Nov. 1818. served in due time by leaving it at the office of plaintiff's attorney, who returned it the next day in a letter, saying, that he should not accept the notice because he had taken an assignment of the bail bond; but the letter did not state the time when the notice was received. Chitty submitted that this was a sufficient acknowledgment to render the service of the notice sufficient; and Mr. Justice Holroyd ruled accordingly, and the bail justified.

1819.

Saturday,
Jan. 30th.

Notice of the justification of bail must be per sonally served upon the plain-. tiff's attorney, or some clerk or servant in his office, and an affi

davit that the

door of his office

was shut, and

was left before

10 o'clock at

night, will not suffice.(a)

FOWLER'S BAIL.

THE notice of justification of the bail in this case, by original, was served at a quarter past nine o'clock last night at the chambers of the plaintiff's attorney, but the door being shut, and no person therein, it was put into the letter-box.

Campbell moved to justify the bail under such a that the notice notice, which he contended he might do, for by the practice of this Court the defendant had till 10 o'clock at night to serve his notice. It was the duty of the plaintiff's attorney to keep his chambers open until that hour, and therefore he submitted that putting the notice into the letter-box was equivalent to a personal service. These were only bail of whom the plaintiff's attorney had had former notice. If the defendant was not allowed to justify his bail under these circumstances, having done every thing that the practice of the Court required him to do, it would be imposing upon him a very great hardship; for the plaintiff's attorney might shut up his chambers the whole day, and it would be impossible therefore to prove personal service. He confessed that he did not want time, but it was fit that the practice of the Court should be settled one way or the other.

BEST J. having inquired of the Master what the practice was in such cases, said-It strikes me that this service ought to suffice, but I find that the usual practice is to give further time in such cases to serve fresh

(a) See the last Case and note.

notice in more seasonable hours of business; and as you say you do not want time, that is an additional argument for requiring fresh notice. I am afraid I cannot allow the bail to justify.

1819,

FOWLER'S BAIL.

HALL'S BAIL.

BAIL by affidavit. It appeared by the affidavit that the service of the notice of justification was by leaving it at the chambers of the plaintiff's attorneys, no person being therein, and that the deponent had two days afterwards called at the attorneys' chambers for an ackowledgment of the notice, but was unable to obtain any information upon the subject. Chitty moved to justify the bail under these circumstances, submitting that the service was sufficient.

BEST J. however held it bad; and the Master having suggested another objection, viz. that the bailpiece was not entitled of the Court or in the cause, the bail were not permitted to justify, but a week's time to serve fresh notice and prepare a fresh bail-piece was given, the proceedings having been sent up from Nottingham.

(a) The bail-piece is made out by the defendant's attorney, and stamped with a half crown stamp, 55 Geo. 3. c. 184. sched, part 2. and should be entitled of the Court and Term, (Tidd, 6th ed. 255.) and state the county into which the writ issued. Smith v. Miller, 7 T. R. 96. The King v. Smith, 3 M. & S. 532. and the names of the parties, together with the names and additions of the bail, and the sum sworn to, and the day it was taken, and the person before whom it was acknowledged. Tidd's Forms, 4th ed. 112. But if bail be put in in the county where the defendant is arrested upon a testatum capias, it is not a nullity if the county whence the testatum issued appear in the margin of the bail-piece, The King v. Sheriff of Middlesex, 3 M. & S. 532.