Mayell v. Follett
New York Supreme Court
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.
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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.
1Opinion of the Court
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…
2Cited by3 opinions
- Begole v. StimsonMichigan Supreme Court · 1878
- Strang v. BarberNew York Supreme Court · 1800
- Morgan v. JonesMichigan Supreme Court · 1898