Majority
p. 97*Masterton, gentleman, one, &c. against Benjamin.
Headnote
If special bail be duly entered, but notice thereof and of justification be not given till after the arrest of the bail, proceedings on the bond will be staid on payment of costs. See 1 Caines' Rep. 56 .Tan Wyck moved to stay proceedings on a bail bond, under the following circumstances :
The writ in the original suit was sued out in last August vacation, returnable in the November following. Special bail was filed on the ninth of December then next, but notice of it not given. On the 5th of May after, a cap. ad resp. was issued on the bail bond returnable in the then May term, on which the bail in the principal suit were taken. On this, notice of bail having been filed was given-with an offer of justification, which the plaintiff, being satisfied of their competence, waived. On this, the defendant, on the 6th of June, served the plaintiff with an order from the recorder of New York, to show cause before him why the proceedings on the bail bond should not be staid, and upon service, the plaintiff, without acting upon the order, agreed to stay proceedings till the decision of this court could be had.
Williams, contra,
insisted the application ought to have been made the last term, and not to the recorder. There was therefore a laches not accounted for.
p. 98
Van Wyclc, in reply,
cited Oole. Cas. Prac. 57, 58 • Berry ads. Mies; Cromp. 75; High, on Bail, 54, 55.
The case in Coleman is decisive. Let all proceedings on the bail bond be staid on payment of costs.