Majority
p. 111Fowler, manucaptor, ads. Boardman and Hunt.
Headnote
MOTION to stay proceedings on the recogniz-Jhce, and for leave to enter an exoneretur on the bail-piece. It appeared that the defendant was arrested on the recognizance on the 17th of April; that he fell sick on the 21st, and lay ill 10 days ; that on the 26th the principal was surrendered by an agent of the defendant, he being so unwell as to be unable to do it personally.It was objected, 1. That the surrender was not in time, being after the expiration of the eight days allowed by law; and, 2. That here the surrender was made only by an agent of the bail, and not by the bail himself, and so, not good, because bail cannot depute.
The sickness of the defendant afforded sufficient excuse for not surrendering within the eight days. To the second objection, it appears, from the form of the sheriff’s certificate, that the principal surrendered himself, and it is to be presumed it was done voluntarily. However, if it were now a question, we incline to the opinion that special bail may depute, ex necessitate.
Let the defendant take the effect of his motion, on payment of costs.