Majority
p. 49Drake v. Hunt.
Headnote
THIS action was originally commenced in the mayor’s court of the city of Nevj-York, and removed by habeas corpus.Bail had been regularly filed, and Munro for the defendant, moved the last April term, that the plaintiff be nonprossed for not declaring. He cited 2 Cramp= #072,410» 2 Salk. 455. Gilberts Law of Distresses. 139. Cur. ad. vult.
The court now gate their unanimous opinion, that the cause having been removed to this court without the agency or approbation of the plaintiff, he was not obliged to follow it, and could not be nonprossed for not declaring here, as he had never been in court; but that the defendant was not bound to accept a declaration after two terms had elapsed.