
    Mabbit and others ads. Bird, assignee of the sheriff of Rensselaer.
    r | "’HE original fuit was inftituted againft five * the iheriff returned four, taken, and as to one, non ef ; but by miftake took bail bond for the appearance of all. The four who were taken entered fpecial bail, and gave notice, to which there was no exception.
    The plaintiff then inftituted the prefent fuit on the bail bond againft the whole. And now,
    
      Woodworth for defendants moved to fet afide the proceedings in the fuit for irregularity.
    
      Bird contra. He infilled that this Court have no cognizance of a cafe like the prefent; that this is an appeal to the equity powers of the Court, which can never be exercifed till after forfeiture of the condition. The defendants muft refort to their plea.
   Per Curiam.

The principle contended for by she courfel for the plaintiff, is corred!. Equity powers only arife after forfeiture of a condition in the bail bond.

The defendants mull rely upon their plea of comperuit ad diem. But this decifion is not to be under flood as precluding defendants from applying hereafter to the equitable interpolation of the Court.

Motion denied.  