Phelps and Howard, Overseers of the Poor of Preble, against Bronson and others

Phelps and Howard, Overseers of the Poor of Preble, against Bronson and others. Whereaplaindefault, but omhT^o^'fflo bajb motion, will ai-' ertytoSdo this nunc pro tunc. Several questions were made, upon cross-motions, as to the regularity of the proceedings to judgment; one of which was, whether the plaintiffs’ attorney should be suffered to file common bail for the defendants, nunc pro tunc, . they having been arrested, and the ordinary return of cepi corpora having been made, and the default, though regular in other respects, being, by inadvertence, without a common bail piece being first filed ; and as to this, [MAJORITY — Per Curiam.] Per Curiam. There is no doubt that when a plaintiff takes his default, but inadvertently omits to file common bail, in a case proper for it, He should always be permitted to make his proceedings good by doing this nunc pro tunc. Upon such a case being presented by affidavit and notice of motion, it is a matter of course to grant a rule that it may be done. Rule accordingly, Vid. 2 Cowen’s Rep. 43, per Sudam, Senator.