Mabbit and others ads. Bird, Assignee of the Sheriff of Rensselaer

Mabbit and others ads. Bird, Assignee of the Sheriff of Rensselaer. 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, Woodworth for the defendants, moved to set aside the proceedings in the suit for irregularity. Bird, contra. He insisted that this court have no cognizance of a case like the present; that this is an appeal to the equity powers of the court, whiqh call .never be exercised till after forfeiture of the condition. # The defendants must resort to their plea. [MAJORITY — Per Curiam.] Per Curiam. The principle contended for, by the counsel for the plaintiff, is correct. Equity powers only arise after forfeiture of a condition in the bail bond. . The 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. Motion denied..