Dunham v. Macomber — 5 Wend. 113

Majority

p. 113

Dunham vs. Macomber.

Headnote

Sail for females, in actions founded upon contract, are enlitled to have an exonerelur entered on the bail piece, under the revised statutes, which declare that no female shall be imprisoned on any process in such action.

Motion for exonerelur of bail. The action in this case is debt on bond. The defendant is a female. The suit was commenced in Mny, 1829, and txvo individuals became special bail for the defendant. Under the provisions of (he revised statutes, 2 R S. 428, § 9, declaring that no female shall be imprisoned on arty process in any civil action founded upon contract, a motion is now made that an exonerelur be entered on the bail pieces in this cause.

J. A. Lott, for the motion,

C. D. Sackelt, contra.

By the Court,

Whenever the defendant is privileged from imprisonment in a civil action, (he bail are entitled to be discharged. In the case of a defendant who has obtained an insolvent discharge exempting his body from imprisonment, it is of course to discharge the bail. The fact of the suit having been commenced previous to the revised statutes going into operation does not prevent the granting of t his application. The law exempting a female from imprisonment affects the remedy only, and not. (lie rights of the plaintiff; wherefore the saving clause in the repealing act, 3 R. S, 779, § 5, has no application to this question.

Motion granted.