Majority
p. 54The People, ex. rel. Works, against The Judges of the Court of Common Pleas of the County of Onondaga.
Headnote
If bail do not theÜ ümT^alrules'1 by ¡¿¡e Court, they baifand^laiu8 tiff cannot givh^notice that he waives AndthiTcourt Tease™-* ¡Uc!l the bail are Court of Com mon Pleas, danms,’1 commanding the to order an cxonerteur to be entered upon the bailpiece, and to set aside the proceedings in the suit against the bail.
C. P. Kirkland, shewed cause, why a mandamus should, n0^ issuei requiring the Judges, &c. of Onondaga County to orc*er an exonereiur entered upon a hail piece, wherein Works had become special bail for Rust, at the suit of Froth^nS^am & Fort, in the Common Pleas of Onondaga, and to set aside the proceedings in a suit against the bail, The bail piece was filed March 1st, 1822 ; an exception endorsed thereon the 9th day of the same month, against the bail, and notice thereof served the same day. The declared de bene esse, and afterwards, on being indemnified against the insufficiency of Works, as bail, they §ave not'ice to Rust’s attorney that they waived the exception and received a plea, proceeded to judgment and execution, an^ sue<^ the bail, who never justified, upon the recognizance: and the Common Pleas had, on motion, refused to order an exoneretur, and to set aside the proceedings in jj,e Sllj¿ against the hail, °
p. 55
Kirkland, said that this Court would not interfere with mere questions of practice in the Courts of Common Pleas, That each of these Courts had rules of practice peculiar to themselves, into the propriety of which, the Supreme Court would not inquire. He referred to Lee v. Oxenden, (Skinn. 290,) and Lee’s case, (Carth. 169,) where the King’s Bench refused to interfere, by mandamus, to restore a Proctor of Doctor’s Commbns, who complained that he had been improperly removed from practising there, by the Dean of the Arches. This was upon the ground of its being a matter, properly, and- only cognizable, in the Ecclesiastical Court. (Carth. 170.) In Burtus v. M'Carty, ( 13 John. 424 ,) the Supreme Court say, “ each Court has its own rules of practice as to proceedings against bail, and it would be inconvenient for this Court to be inquiring into the rules of prac- . tice of the different Courts of Common Pleas.” According to this reasoning, these rules of practice are mere matters of discretion; and this case comes within the doctrine held by the Supreme Court, in Hull v. Supervisors of Oneida, ( 19 John. 262 ,) viz. that where the inferiour tribunal has a discretion, and proceeds to exercise it, this Court have no jurisdiction to control that discretion by mandamus. In the exercise of this discretion, the Onondaga Common Pleas have adopted the practice of the Court of Common Pleas in England, instead of that which prevails in this Court. The case of Bramwell v. Farmer, (1 Taunt. 427,) shows the English practice in the C. P. to be settled, that an exception, though the hail never justify, will not per se warrant the Court in ordering an exoneretur. He also referred to Fulke v. Bourke, (1 Bl. Rep. 462.) as showing the same practice ;[1] also to Imp. C. P. 193 ; Tidd, 225, and The King v. The Sheriff of Essex, (5 T.R. 633.)
J. Grffn, contra, said the case of Flack v. Eager et al. ( 4 John. 185 ,) is in point. And shows that an exception against bail, who do not justify, discharges them. He also referred to the case of Humphry v. Leite, (4 Burr. 2107,)
(a) (a) And vid. Wilson el al. v. Lafortune, Barnes, 104. Waller v. Green et al. Sayre, 308.
p. 56
which shows the practice of the English K. B. to be the same. This Court will not presume that the Onondaga Common Pleas have a rule of practice in this particular, conformable to that of the English Common Pleas. Nothing of this appears from the affidavits ; and it would be in time, to decide whether they could pass a rule of practice differing from the one which prevails in this Court, when it is found that such a rule is made.
Kirkland. In Flack v. Eager, there was no notice given that the exception was waived. Here it is otherwise.
Curia. If special bail do not justify within the time allowed by the rules of the Court, they cease to be bail. The plaintiffs cannot then hold them by waiving the exception, even where there is no surprize. The Court below, therefore, erred in refusing to order the entry of an exoneretur, and to set aside the proceedings against the bail.
Rule for mandamus, absolute.-