
    Olive, Colcott, & Co. v. Mandeville.
    A motion, made before the appearance day, to appear without hail, will not be beard if the defendant be not in actual custody. •
    The writ was returnable to this term. The appearance day of this term is the day after the rising of the Court.
    Motion by Mr. Jones to appear for the defendant without bail, grounded on the defendant’s discharge under the bankrupt law of England.
    The plaintiff’s counsel, Mr. R. J. Taylor, made affidavit that the defendant’s motion was made the last evening ; that he is informed and believes that John Sutton will prove that the discharge was obtained by fraud; that he has called twice at the house of Sutton, and was informed that he ivas so ill that he could not be seen; and thereupon moved that the defendant’s motion might be continued till next term. The defendant had given appearance-bail.
   The Court

would not now, in this case, the defendant not being in actual custody, hear the motion to appear without bail before the appearance day.  