
    
      Swartwout, manucaptor of Sands, ads. Gelston, Assignee of the Sheriff of New-York.
    
    THIS was an application to stay proceedings on ' bail-bond. The attorney for the defendant in the original suit, had given notice of retainer and of bail at the same time, by leaving it at the office of the plaintiff’s attorney (which was kept in his dwelling-house) when no person was present. It appeared that two terms had elapsed before the present suit was commenced.
    It was insisted, 1st, that the service of notice was ¡regular, and to this point was cited 4 Durn. & East, 464. And 2d, that the plaintiff had been negligent in delaying so long to put the bail-bond in suit. Barnes’’ Notes, 11)3.
   Per Curiam.

The notice was not duly served. It should have been given to some person in the house. To make a notice good, it must be shown that every thing has been done to bring it home to. the party. The service must, first, be on some person in the office, and belonging there; if nobody is there, it must be upon some one in the house where the attorney resides or the office is kept; and if nobody is there it may be left in the office. But as there has been a negligence on the part of the plaintiff, in not putting the bail-bond in suit at the subsequent term, we will not now fix the bail for the irregularity of the notice, which the prevalence of the yellow-fever in the city at the time, may in some measure excuse.

Wattman, for the defendant,

Coleman, for the plaintiff.

Let the proceedings stay on payment of costs, and receiving a justification of bail if required.  