
    Stever vs. Somberger.
    ALBANY,
    June, 1838.
    After the time of surrender has expired, the court will not relieve the bail by ordering an exoneretur, on the ground that the defendant is a resident, and not liable to arrest.
    Whether the bail can in any stage of the proceedings move for an exoneretur on such ground, quere.
    
      K. Miller,
    
    on behalf of the bail, moved to enter an exoneretur on the bail piece, on the ground that this is an action of assumpsit, and the defendant a resident of this state and not liable to arrest. The plaintiff had proceeded to judgment against the principal, and then brought an action against the bail, who appeared and the cause was put at issue, and now, after the time for ~urrendering the principal had elapsed, the bail made this motion. Whether the defendant in the original action was a resident of this state or not, at the time of the arrest, was a controverted fact.
    
      M. T. Reynolds, opposed the motion. *
   By the Court,

Bronson, J.

It was for the defendant and not the bail, to take the objection that he was not liable to arrest. But if the bail could ever have been heard, they are now too late.

Motion denied.  