Russell v. Champion

9 Wend. 462

Opinion

By the Court,

Nelson, J.

It being shewn that the judgment in this caséis founded upon contresA, prima facie the defendant cannot be arrested. Besides, the plaintiffs have had notice of this motion, and have not shewn that the defendant is subject to arrest within the provisions of the act of 1831. There cannot, therefore, be any reason for refusing the exoneretur, to which the bail might at any moment entitle themselves by surrendering the defendant, or to which the defendant might entitle them by surrendering himself in discharge of his bail. Whenever it is shewn that a defendant is not subject to arrest, it is a matter of course to order an exoneretur.

Motion granted.