Warner v. Hayden — 2 Wend. 251

Majority

p. 251

Warner vs. Hayden.

Headnote

Bail on recog"eheved^on ^fidTattempt to surrender elght’days.^

Motion respecting bail in suit on recognizance. The capias against the bail was returnable on the first day of the last October term, (twentieth of October,) on which day it was served. The defendant immediately took measures to procure copies of the bail-piece which was filed in Utica, a distance of 150 miles from his residence, and received the same on the twenty-ninth day of October, and two days after surrendered the defendant to the sheriff of Monroe, before the first judge of that county, who ordered an exoneretur on the bail piece. On the twenty-third day of October, the defendant had obtained an order from a circuit judge, extending the time for the surrender until the sixth day of November. A motion was now made for a perpetual stay of proceedings in the suit on the recognizance.

The order of the circuit judge was a nullity; it belongs only to this court and not to a judge acting as a commissioner, to give an extension of the time to surrender ; still, under the circumstances of the case, and the change in the practice of the court as to the time of giving of notices, the defendant is entitled to relief. The de -

p. 252

fendant had until the expiration of eight days in full term to surrender his principal. Had he applied to this court for time, he must have given eight days notice of such applicatian, and then, according to the rules of October term, 1827, and the practice under them, the eight days to surrender might have expired before any order was made by the court. Having been vigilant and done all in his power, a perpetual stay of proceedings against the defendant is ordered, on payment of the costs of the suit on the recognizance and of this motion. (See 3 Caines, 136.)