Majority
p. 51Ballard and Parkman, manucaptors of Chapman, ads. Kibbe and Ludlow.
Headnote
THIS was an application by bail to furrender their principal, on the following cafe.In April term, 1797, Ca. fa. againft the principal was returned non ejl. On which, plaintiffs iifu-ed a cap. ad. refp. againft the bail jointly, on their recognizance. This writ was delivered to the ihe-riff of Herkimer or his deputy, early in April vacation, being returnable the laft tueiday of July then next.
On the 7th of July the deputy, having pofleffion of the writ, but not in his pocket, met Parkman, one of the bail, and informed him of the writ; on which Parkman promifed to come to the houfe of the deputy and indorfe his appearance thereon before the return day. He accordingly came and indorfed his appearance, but at what time precifely, Chcefc-borough, the deputy, who is the witnefs, does not recolleft. By the affidavit of Parkman himfelf, it appears to have been two days after the return day of the writ. The writ was then returned, with fitch
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indorfement. but without any return indorfed by the Jherijf himfelf,,
In July vacation, plaintiff iffued an al. cap, againft Ballard, to anfwer fimul cum Parkman, returnable in October term, which having been returned “ non efif plaintiffs iffued a tejlatum againft Ballard alone, returnable in January, 1798, directed to the fheriff of Onondaga, who took him.
Auguft 28th, 1797, defendant’s attorney had delivered plaintiff’s attorney a writing intended as a plea in abatement, praying that for want of an official return, as well as on account of fuch irregular fervice of the writ on Parkman, the plaintiff’s bill might be quaihed.
February 10th, 1798, plaintiff’s attorney delivered a copy of the declaration filed, againft the bail jointly.
February 13th, 1798, plaintiff ’s attorney received a plea in chief, nil debet, in behalf of Ballard alone; and at the fame time another writing, intended as a plea in abatement, in behalf of Parkman feparate]y, arid fo entitled, and grounded upon the before mentioned objection, viz. the want of official return.
The proceedings refpecling the fur-render were as follows.
January 13th, 1798, three days before the term, the fheriff of Herkimer figned an acknowledgment,
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that the principal was in his euftody, on a farren-der by Parkman, in behalf of himfelf and Ballard.
January 27th, On application of Ballard in behalf of himfelf and Parkman, his Honor Judge JBenfon made an order for a commitment.
March gth. The íheriff figned a farther acknowledgment, that the principal was ftill remaining in his euftody when the committitur came to his hands,
March 20th, Judge Benfon made an order for the plaintiffs to appear and ihew caufe why an exoneretur fhould not be entered. They appeared accordingly, and the cafe was adjourned over to be argued and determined in open Court.
On this cafe the following queftions were raifed :
I. Are the defendants now too late in their application ?
II. Can one bail be difeharged alone when the application is for the difeharge of both ?
III. Will the difeharge of one bail operate as a difeharge of all ? and if one is fixed, will not the other be fo likewife ? Curia ad. vult.
The furrender by Ballard is good as to both. If a plaintiff will eleft to fue fpeciai bail jointly, he who is firft taken ihall have time to,
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furrender till the laft is taken alfo, and till the time allowed him [the laftj for furrendering is expired. If he foes them Jeparaidy, then each may be feparately fixed ; or one may he fixed, and foe other may af-terwards furrender the principal, and be difcharged. So that, in fafit, plaintiff may have the body of defendant in cuftody, and at the fame time go on with a foit again ft the other bail whiph has been fixed. He cannot, however, have more than one fatisfafition.
Let the defendants take the effe£t of their motion, on payment of coils.