Flack v. Eager — 4 Johns. 185

Majority

p. 185

Flack and Flack against Eager and another, bail, &c.

ALBANY,

February, 1809.

Headnote

Where bail was put in, and the plaintiff entered an exception on the bail-piece, and afterwards proceeded in the cause, without any justification of bail, or new bail, and obtained a judgment, it was held to amount to a waiver of bail, and that he could not proceed against the bail, to whom he had excepted. No formal notice of a waiver of hail is necessary.

GOLD,

in behalf of the defendants in this cause, moved, that the proceedings in the cause should be set aside, and an exoneretur entered on the bail-piece, in the original cause.

The defendants were sued as bail to the sheriff in an action brought by the plaintiffs against one Denniston. They became special bail in the cause, and the bail-piece was filed in the clerk’s office on the 30th November, 1807. An exception was entered on the bail-piece without date, notice of which was given on the 9th December, 1807. A declaration was filed, de bene esse, in the same suit, on the 8th January, 1808, and a rule to plead entered. The defendants did not attempt to justify, nor was any other bail substituted in the i cause. On the 5th July, 1808, a default was entered, on which an interlocutory judgment was entered, on the 5th August, 1808. A final judgment was obtained, andthé same signed and docketed, on the 2d September, 1808. To recover the amount of this judgment, the present suit was brought against the defendants, as the bail of Denniston, who had become insolvent, and was in prison, in Philadelphia. It appeared, that the exception entered on the bail-piece, had never been erased, nor had any notice been given to the defendants, that it had been waived by the plaintiffs. Humphrey v. Leite (4 Burr. 2107.) was cited,

Henry, for the plaintiffs.

The defendants were entitled to mané this application at any time; and they have applied, as soon as they were called on, as bail. The case of Humphrey v. Leite (4 Burr. 2107.) is in point. There has been a waiver of bail in this case, and no formal notice of the waiver was necessary. The motion must be granted, with costs.

Rule granted.