Caton v. M'Carty — 2 U.S. 141

Majority

p. 141

Caton, Assignee of the Sheriff, versus M‘Carty.

Syllabus

LEVY had obtained a rule to shew cause, why the proceedings on the bail-bond should not be said, on the ground that the plaintiff had accepted the defendant’s appearance, by filing a declaration in the original action. This he contended was a waiver of bail, and cited Highm. 153. 157. Lilly P. R. 86. Barnes. 257. Rich. Prac. 132. Poph. 145.

Heatly, in reply, urged

that the English practice had never been extended here ; and if it was, the declaration ought to have been delivered, before it could have had effect. 2 Term. Rep. 112. 1 Cromp. 94. Impey. Prac. 94. Rule. B. R 23. 24.

—It has been the practice in Pennsylvania to file declarations before appearance. In the case of summons the act requires that it should be filed days before the return day. It has never yet been determined, that the filing a declaration is a waiver of bail: We have no such rule ; and, unless

p. 142

some substantial benefit is to be derived from adopting the practice contended for, the Court will not alter the usual course.

Rule discharged.