Doremus v. Kinney

3 Denio 178

Opinion

By the Court, Bronson, Ch. J.

Trover is an action in which the defendant may be held to bail as a matter of course. (2 R. S. 348, § 7.) And in such cases, if the defendant wishes relief, he is not at liberty to come here in the first instance; but must apply to a judge at chambers for an order that the plaintiff show cause of action, or that the bail be mitigated. (Smith v. Newell, 7 Wend. 484.) And if either party is dissatisfied with the decision of the judge, the matter should be brought up by way of appeal. It cannot be proper to come here by way of original application. The case of Watkinson v. Laughton, (4 John. 307,) was an appeal; and in Hart v. Faulkener, (5 id. 362,) the motion was that an exoneretur be entered on the bail-piece ; which was an application that had not been, and could not be made before a judge at chambers.

The motion must be denied; but without prejudice to any further application to the circuit judge, or an appeal from the order which he has already made.

Ordered accordingly.