Majority
p. 62Berry, who is impleaded with Bushbee, ads. Elles and others, Assignees of the Sheriff of New York.
Headnote
MOTION .by Boyd, to stay proceedings on bail-bond. It appeared that the copias in the original suit had been returned in January term last, and that a declaration was filed the 14th of June following j no •
p. 63on the ground that the plaintiffs had now lost a trial in the original action for want of bail.
bail to the action then being put in. Process issued ° 1 _ on the bail-bond in the last vacation, and on the 10th of August, the defendant was arrested thereon. It also appeared that the notice of this motion was accompanied by an offer of good bail and a cognovit actionem.
Colden opposed the motion,
The plaintiffs may have lost a trial, but they have been negligent on their part. They should have put the bail-bond in suit in January vacation. It is not a loss of trial alone, which will prevent our interfering to relieve in these cases, but that loss must be without neglect on the part of the plaintiff, and must be occasioned by the delay of the defendant, after bail is called for. If a different practice was allowed, a plaintiff would be tempted to wait a term or longer, and thus ensnare the bail. The court will always stay proceedings, if application be made for that purpose, on the return of the bail-bond writ.
Let the proceedings be stayed on payment of costs.