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Mayell v. Follett

7 Wend. 507 Court N.Y. Sup. Ct. Decision date 1832-02-23 English

Delivered by Sutherland, J.

Contents

Majority

p. 507
Mayell vs. Follett.

Headnote

Sail have eight days in full term, in which to surrender their principal, whether the suit against them be commenced by declaration or capias.
The plaintiff, however, may proceed in his suit against the bail subject to the right of the bail to surrender their principal, and be discharged, on payment of costs.
February 23.
Motion for relief of bail. During the last January term of this court the plaintiff commenced a suit against the defendant, on a recognizance of bail. The defendant had only seven days after the service of the declaration in the two first weeks of term, within which to surrender the principal, but did not avail himself of that privilege; the plaintiff proceeded in the suit, obtained judgment against the bail, and issued an execution. The defendant now moves to set aside the proceedings of the plaintiff as irregular, and if such motion be refused, then to be relieved on terms.

By the Court,

The proceedings of the plaintiff have been regular ; he had a right to proceed in his „ suit, obtain judgment and issue execution, subject however to the right of the defendant to surrender his principal, within eight days in full term; who, on doing so, and paying the costs of the suit against him, is entitled to be discharged from his responsibility. Notwithstanding the filing and service of a declaration under the provisions of the revised statutes is equivalent, in many respects, to the commencement of a suit by capias, the eight days allowed, ex gratia, to bail to surrender, are the same

p. 508
as they were under the former practice; the bail has eight days infua term t0 surrender the principal. In this case during the last January term, the bail had but seven days, consequently he ^as one (^mJ *n the next May term, in which he may surrender his principal; and on doing so, and paying the costs of the suit against him, he is entitled to have an exoneretur entered on the bail piece. Let, therefore, the proceedings be stayed ; and if# on the first day of the next May term, the principal is surrendered, and the costs of this suit paid, the judgment and execution against the defendant will be set aside.