Masterton v. Benjamin 1 Cole. & Cai. Cas. 363

Henry Masterton, gentleman, one, &c. v. Everard Benjamin.

VAN WYCK moved to stay proceedings on a bail bond, under the following circumstances:

The writ in the original suit was sued out in last August vacation, returnable in the November following. Special bail was filed on the ninth of December then next, but notice of it not given. On the 5th of May, after a ca. ad resp. was issued on the bail-bond returnable in the then May term, on which the bail in the principal suit were taken. On this, notice of bail having been filed was given, with an offer of justification, which the plaintiff, being satisfied of their *364competence, waived. On this, the defendant on the • 6th of June, served the plaintiff with an order from the recorder oí New-York, to show cause before him, why the proceedings on the bail-bond should not be staid, and upon service, the plaintiff, without acting upon the order, agreed to stay proceedings till the decision of this court could be had.

Williams, contra,

insisted the application ought t© have been made the last term, and not to the recorder. There was, therefore, a loches not accounted for.

Van Wyck in reply,

cited Cole. Ca. Prac. 57, 8-Cromp. 75. High, on Bail, 54, 5.