Thomas v. Bulkley

5 Cow. 25

Opinion

Curia.

We should, clearly, have enlarged the time to surrender this sick man, had his sickness been known to the bail, and disclosed to us within the eight days allowed, ex gratia, for surrender, after the return day of the capias against the bail; and the case would then have finally come to an exoneretur. The facts not being known to the bail within that time, he could neither obtain an order to stay proceedings, nor apply to the Court fd give the further time. He has, therefore, been guilty of no laches; and by ordering an exoneretur, we are only doing directly what would, had not unavoidable circumstances intervened, ultimately have been obtained in another way. We think the bail should not be prejudiced by the sickness of his principal; especially as the plaintiff will not suffer by his discharge, which must be granted on payment of costs. There is no case in this Court, precisely in point; but we think the principle of Boardman v. Fowler, (1 John. Cas. 413,) applies. Let an exoneretur be entered, on payment of the costs of the action against the bail, and of opposing this motion.

Rule accordingly-