¶1Service upon the attorney was, in legal effect, service upon the defendant. In Judson v. Jones, 12 Wendell, 209, the declaration was not delivered to any one, until afte'r the defendant was entitled to his discharge. In Gronehouse v. Cleaver, 11 Wendell, 357, and 1 Str. 476, the prisoner *676had no attorney. In Dent v. Hallifax, 1 Taunt. 493, the attorney was only employed for the purpose of putting in bail, and when the declaration was served on him, he immediately returned it to the plaintiff’s attorney, and pointed out to him the necessity of delivering it to the prisoner. But here, the attorney wss employed generally, to defend the suit, and service upon him was sufficient.
¶2When the defendant in a bailable action is at large, the plaintiff is not obliged to declare until after an appearance has been perfected, and if in the mean time he delivers a declaration unconditionally ¡ it is a waiver of bail. But here, the plaintiff was obliged to declare “ before the end of the term next after the process was returnable.” 2 R. S. 350, § 23. And besides, there was nothing to be waived. The defendant was in actual custody, which was an appearance for all the purposes of the action. Although the defendant might put in and justify bail for the purpose of obtaining his discharge, the plaintiff could not call on him to do so. Having no right to demand bail, the delivery of a declaration unconditionally could be no waiver of bail.
¶3Motion denied.