Cooper v. Spicer ( 1824 )

Curia.

Had Oddie applied, we should doubtless have directed an exonerétur, but he is not before the Court in any shape. The other bail have no right to apply for him.

■ Then this -exception is introduced as matter of defence upon the trial. It is said that Oddie "is not bail; that he ceased to be so on entering the exception and neglect to justify. This is true "to every substantial purpose. He ceased to be bail, and the plaintiff does not pursue him with the view to "make him liable, but merely as a formal party to the record. There is no difficulty in seeing what the rights of parties are. The only difficulty is in th'e form of adjusting those rights. "Strike out the name of Oddie, •and the other defendants will then object the misjoinder. 'Oddie has-never applied to have his name stricken from the bail piece; and we think he continues bail, in form till 'this -is done. The view taken of "this question by the plaintiff’s counsel is correct. Walter v. Green and others, is in -point. ‘Oddie can never be charged as bail, if he apply for an exoneretur ; but he may also waive that right and submit to be-charged together with the other defendants. The proceeding here is under the joint debtoi act. He is not served with process, and the plaintiff may have his judgment on filing a stipulation not to take out execution against Oddie; or the rule may be entered with a "stay of: execution against him.

Rule: That the application in behalf of the defendant Oddie, be denied with costs, that a stay of proceedings be so granted as to preclude an actual levy upon the person or property of the defendant Oddie, under the judgment in this cause; and on reading, &c., notice of trial by the record, &c., and on reading the record of recognizance; and on motion, &c., ordered judgment for the plaintiff.