Mayell v. Follett

7 Wend. 507 | N.Y. Sup. Ct. | 1832

By the Court,

Sutherland, J.

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 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.