Stever v. Sornberger

24 Wend. 274

Opinion

*By the Court,

Nelson, Ch. J.

The bail is estopped from [ *276 ] denying that his principal was liable to. arrest—it is conceded by entering into the recognizance. 2 Ld. Raym. 1535. 8 Wendell, 481, 2. The privilege set up belongs to the principal alone; he may waive it if he pleases ; and which we are bound here to assume he did do, otherwise he would have applied to the court, or a judge at chambers, for a discharge, instead of putting in bail. The idea of duress is absurd, as special bail do not come into the cause till after the return of the writ, and abundant opportunity to apply for the discharge.

The remedy of the bail, is a surrender according to the rules and practice of the court, or the principal might have procured an exoneretur without it, if he had moved in time. 9 Wendell, 462. 19 id. 122.

Judgment for plaintiff on demurrer, leave to amend on usual terms.