Burtus v. M'Carty — 13 Johns. 424

Majority

p. 424

Burtus against M'Carty and Another.

Headnote

cofnlaLnées11 ro? sSlui brought in mónrtpieas¡ must the co™rt of the the sSt‘wSril lé"iallímhe'par. ties who entér into the recognisanee reside within its juris diction, and not in this c&ucti

PAINE, for the defendants,

moved to set aside the execution) judgment, and all proceedings in this cáuséi The suit .was on a recognisance of bail, taken in the court of common pleas of Rensselaer county. The defendants, who were special bail for the defendant, in the original suit, both Fesided in- Rensselaer countv, where they entered into therecoanisancé, and where they - . J ■■ - . -¿J,-' . , • ‘ A were arrested in this suit, i he capias was returna ble in August , . . ’ , - term, and the principal was surrendered by his bail into the 5 *• * . • » •v . custody of the sheriff of Rensselaer on the 9th Augusti and: no» tice thereof given to the-plain tiff’s'attorney on the same day.

Foot, contra'*

The suit- on the recognisance of bail must be brought in the county where the original suit was commenced'. In Davis v, Gillet, ( 7 Johns. Rep. 318 .,) the bail had removed out off the county, so that they could not be there personally served with process* In Haswell v. Bates & Lewis, ( 9 Johns. .Rep, 80 .,) which was an action on a bail.-bopd taken in a court' of common pleas, the bail also resided out of the county; and in Gardiner v. Buchan & Olcott ( 12 Johns. Rep. 459 .,) which was also an action, on-a bail-bond,; the principal; resided, out of the ,county, though the bail lived within-tile county-in-wliieh the original suit -was brought.

Each court has i ts own rulés of practice as to pro'c eed ings. against bail, and it would be inconvenient for this court to be inquiring into the rules of practice of the different courts of common pleas. In the cases which have been mentioned the party would have been without remedy, unless this court had tpken cognizance of the suit against the bail-; and having, taken cognizance bf the cause, we afford the same relief as the court of common pleas, itere, the parties are within the jurisdiction- of the court off the county In wbiqh-the original suit was commenced, so that they can-be served with process out of that court on their recogni-.sanee. They must,-therefore, be'sued in the court of common pleas. _ , '

Motion granted.,--