Warner v. Hayden

2 Wend. 251

Opinion

By the Court, Marcy J.

The order of the circuit judge was a nullity; it belongs only to this court and not to a judge acting as a commissioner, to give an extension of the time to surrender ; still, under the circumstances of the case, and the change in the practice of the court as to the time of giving of notices, the defendant is entitled to relief. The de - fendant had until the expiration of eight days in full term to surrender his principal. Had he applied to this court for time, he must have given eight days notice of such applicatian, and then, according to the rules of October term, 1827, and the practice under them, the eight days to surrender might have expired before any order was made by the court. Having been vigilant and done all in his power, a perpetual stay of proceedings against the defendant is ordered, on payment of the costs of the suit on the recognizance and of this motion. (See 3 Caines, 136.)