p. 427Franklin against Thurber, bail of Thorp.Headnote
fe^^.r^de' obtained his do^th^insoT vent act, dfter gati^Sm^a* ¿evi* personally serwm’notbe^e“eved on ma-The defen^^himseif^ relieved on motion; so oftbe^uie^disPensinó with der, in sucha case, which is to avoid the idle circuity of surrendering a defendant, who must be immediately liberated, does not apply.If a defendant omit to plead his dicharge to a set. fa. whereby judgment by default goes against him, he is concluded ; yet, in such case, if the bail apply within eight days after the return of the writ against them, the court will, upon a proper case being made out, give time to surrender, as they would do in other cases ; and in the mean time stay the proceedings, and will further order, that on surrendering the defendant, and nayin" the costs of the action, proceedings against them be perpetually stayed, °
The original judgment against
Thorp was obtained before the
8th November, 1821.
Thorp was discharged, under the
ic act to abolish imprisonment for debt in certain cases, ” On the
6th of
February, 1822. The plaintiff then, with a view to try the validity of the discharge, proceeded against the defendant,
Thorp, by a
sci.fa. upon the judgment, which was personally served on him, and a judgment was taken hy def<ult, upon which a
fi.fa. issued, and was returned
nulla bona, fyc. and a
ca. sa. was issued and returned
non est invent ns.
A capias ad respondendum against
Thurber, the hail, was then issued, returnable the 16
Ih day
oí August last, being the last return day of that term.
A. Townsend, now (the 4Ih day of this term) moved,
that an exonereteur be entered on the bail piece, and cited 4 John. Rep. 407 , 2 id. 101, 1 Caines' Rep. 9 , and 2 John. Cas. 403.
p. 428Leland, contra,
cited 14 East, 537, 2 Sell. Pr. 55, 198, 1 Wils. 98, 9 John. 392 , and 11 id. 194.The motion for an exonereteur must be denied. rpjle ruje> ^at where a defendant is discharged under the insolvent act we will discharge the bail on motion, is grounded on the idea, that an actual surrender would he an idle ceremony, because the principal must be immediately liberated. But the reason of that rule does not apply here, where a sci. fa. has been issued against the defendant, upon the judgment—been personally served, and a default taken for not pleading the discharge. There is no circuity to be avoided, for were the defendant applying to the Court in person, we could not discharge him from execution upon this judgment on the scire facias. But, under the peculiar circumstances of this case, however, let the bail have thirty days, within which to surrender the principal; the. proceedings on the part of the plaintiff tq be stayed in the mean time, and on making the surrender and payment of the costs which have" accrued against the bail, let the proceedings against them be perpetually stayed.
Rule, accordingly.