Berry v. Elles — 1 Cole. Cas. 57

Majority

p. 57

Berry who is impleaded with Bushbee ads. Elles and others. Assignees of the Sheriff of New-York.

Headnote

MOTION by Boyd, to flay proceedings on bail bond. It appeared that the capias in the original fuit had been returned in January term laft, and that a declaration was filed the 14th of June following; no bail to the aftion then being put in. Procefs iffued on the bail bond in the laft vacation, and on the 10th of Auguft, the defendant was arretted thereon. It alfo appeared that the notice of this motion was accompanied by an offer of good bail and a cognovit attionem.

Golden oppofed the motion, on the ground that the plaintiffs had now loft a trial in the original action for want of bail.

The plaintiffs may have loft a trial, but they have been negligent on their part. They ihould have put the bail bond in fuit in January vacation. It is not a lofs of trial alone, which will prevent our interfering to relieve in tfaef’e cafes, but that lofs muft be without negleft on the part of

p. 58

the plaintiff, and tnuft be oecafioned by the delay of defendant, after bail is called for. If a different prafitice was allowed, a plaintiff would be tempted to wait a term or longer, and thus enfnare the bail. The Court will always flay proceedings, if application be made for that purpofe, on the return of the bail bond writ.

Let the proceedings be flayed on payment of coils.