1 Cole. & Cai. Cas. 70
Decided January 15, 1799
New York Supreme Court · decided 1799-01-15
THE original suit was instituted against five ; the sheriff returned four, taken, and as to one, non est / but by mistake took bail bond for the appearance of all. The four who were taken entered special bail, and gave notice, to which there was no exception. The plaintiff then instituted the present suit on the bail bond against the whole. And now,
Decided 1799-01-15
¶1The principle contended for, by the counsel for the plaintiff, is correct. Equity powers only arise after forfeiture of a condition in the bail bond. .
¶2The defendants must rely upon their plea of comperuit ad diem. But this decision is not to be understood as precluding defendants from applying here» after to the equitable interposition of the court.
¶3Motion denied..