
    Minturn and Champlin against Phelps.
    ALBANY,
    August, 1808.
    Where the defendant, having been surrendered by his more than three months in pnsun, without being charged obtabis6»0 rule to show cause Jea» should not be awarded, if ter service of before*116’ the time assigned to show cause, charges the defendant in execution, he may show that for vdll6 beds'll Iffcient to prevent «I SUtJC?8Cu£QS ' '' "
    A JUDGMENT was obtained in this cause, in May, jg07. A ca. sá. was issued to the sheriff of the city and - county of New-York, on the 14th day of July, 1807, which was returned in August, not found. The defendant was regularly surrendered by his bail in Ontario county, on the f ' 1 . ... 4th of August, 1807, and has since remained in custpdy, ^ ru^ was granted by the recorder of New-York, for the plaintiffs to show cause before him on the 9th day of July last, why a supersedeas should not issue to discharge the defendant, as he had been in custody above three months, on the surrender, without being charged in execution. Gn the day appointed to show cause, the plaintiff’s attorney issued a ca. sa. directed to the sheriff of Ontario county, and inclosed it to him m a letter, which was put jnt0 tiie post-office, in the city of New-York, before the hour at which cause was to be shown. At the hour appointed, the parties appeared, and the plaintiffs showed for cause, that a ca. sa. had been actually issued against the defendant, and sent to the sheriff of Ontario county x, 
      oti which the judge refused to grant the supersedeas. On an appeal from this decision to the court, a motion was How made, oh the above statement of facts, for a supersedeas.
    
    
      Harison, for the plaintiffs.
    
      Johnson, for the defendant.
   Per Curiam.»

In Brantingham's case, (Cole. Cases, 42, July term, 1796.) the plaintiff, after an application for a supersedeas, and before the time of appearance before the judge, charged the defendant in execution, and then, on the hearing, showed thht for cause; and all the judges held it to be sufficient. They were of opinion that the intent of the statute was to enable the defendant to put the plaintiff to his election, either to take the person of the defendant in execution, or to resort to his estate* The present case comes within the reason of that decision. The court are, therefore, of opinion, that the supersedeas ought to be refused.

Rule refused.  