Ward v. Mozer & Mervin — 19 Wend. 153

Majority

p. 153

Ward vs. Mozer & Mervin.

ALBANY,

Dec. 1838.

Headnote

In an action on a recognizance of bail pat in' in a court of common pleas, prosecuted in this court, the time of surrender is governed by the practice of this court, and not by the practice of the court in which the recognizance was taken.

Exoneretur of bail. The defendants were sued in this court as special bail on a recognizance entered into in the superior court of the city of New-York, in a suit prosecuted in that court. Within the first eight days of the term of this court succeeding the commencement of the suit against the bail, the principal was surrendered, and on such surrender the bail applied to the superior court for an order directing an exoneretur to 'be entered on the bail piece. That court refused to grant the order, for the reason that by its rules the surrender must be made within ten days after the commencement of the suit against the bail or the bail are fixed, and that more than ten days had elasped since the suit against the bail. A motion was thereupon made in this court for an exoneretur.

J. M. Van Cott,

for the motion, relied upon the case of Fisher v. Branscombe, 7 T. R. 355.

S. F. Cowdrey,

contra,.cited Shuttle v. Wood, 6 Mod. 132.

By the Court,

The cases cited-are conflicting. Shuttle y. Wood holds that in an action in the king's bench on a recognizance taken in the common bench the court are to be governed in respect to the surrender of bail by the practice of the latter court; whereas the case of Fisher v. Branscombe holds that the practice of the court in which the action against the bail is brought should govern. I am disposed to adopt the latter case as a precedent, and therefore grant the motion.