Wiggins against Wilson, impleaded with Doe, manucaptors of Boardman, and others

Wiggins against Wilson, impleaded with Doe, manucaptors of Boardman, and others. The 8 days special whba!i may surrender tail computed within the^test and return ceJ °f pr°" The defendants were special bail for E. O. and D. Board-man at the suit of Wiggins, who obtained judgment; and the ca. sa. was returned non est inventus, as to all the defendants. The bail, defendants in this suit, were then sued ^Y capias a& vcspondendum, returnable the 4th day of March, 1826, the last return day of the term, though the court continued its session to the 25th. 0. Boardman had been discharged Oct. 20th, 1825, under the insolvent act of April 7th, 1819, “ to abolish imprisonment for debt in certain cases.” On the 24th of March, 1826, D. Boardman was surrendered to the sheriff of Cortland; and on the 22d of April, E Boardman was surrendered to the sheriff of Albany, by the bail. J. Hoyt now moved that an exoneretur be entered on the original bail piece, upon payment of costs. E. Paine, contra, insisted that the motion came too late. He said the term for the purposes of surrender, and indeed for all purposes, except the mere test and return of process, continued to the 25th of March; and so it is considered in practice. In this view, the 8 days in full' term had elapsed before the surrender; and there being no adequate excuse for the delay, the bail were irrevocably fixed. (Thomas v. Bulkley, 5 Cowen, 25.) [MAJORITY — Curia.] Curia. We are not aware what the practice has been; whether the 8 days have been considered as belonging to the first fortnight, or the term at large. Were we satisfied that the latter had been the case in general practice, we should probably follow it. But this is a motion in favor of bail and counsel have acted under the idea, that the time is to bo taken according to the test and return days of process. We adopt this as the correct practice; and direct that it be followed in future. Motion granted.