
    Rathbone and another against Warren, Bail, &c.
    NEW-YORK,
    May, 1809.
    
      May 12.
    Where the capias ad respoiulenditm against bail, was made returnable on the third day of the term, and on the 12th day of the term, the bail made affidavit, that until the 6th day of the term, he had supposed the writ returnable on the last day of the t urm, so that he should have S days in the next term to surrender, and that after discovering Ins mistake, it was impossible to make the surrender in the S days in term, as the principal was out of the state, at the distance of more than 150 miles from Albany, it was held that the application for relief was too late,and that the excuse was not sufficient.
    'THIS was an action of debt brought against the defendant as bail of one Warren. A capias ad respondendum was issued against the defendant, who resided at Albany, returnable the third day of the term, being 3d May, on which he was arrested on the 2d May. 'The defendant, in bis affidavit, stated, that until the 6th May, he supposed that the writ was returnable on the last day of this term, and that he should have until the next term to surrender the principal. That the principal was absent, and out of the state, at the distance of more than 150 miles from Albany, so that it was not possible to make a surrender within the time required, or during the present term.
    
      C. Bogert, for the defendant,
    now moved for a rule, allowing the defendant, until the first day of the next term, to surrender the principal, and that on making such surrender, all proceedings against the bail should be stayed. Van Rensselaer v. Hopkins, (3 Caines, 136.) Boardman v. Fowler, (1 Johns. Cases, 413.)
    
      H. Bleecker, contra,
    read an affidavit, stating, that the ca. sa. against the principal was returned non est inv. at the last term. He contended, that as the 8 days had expired since the return of the capias ad respondendum against the bail, they were absolutely fixed.
   Per Curiam.

In the case of Boardman v. Fowler, the bail was prevented by sickness from making ’the surrender in time. The excuse offered by the defendant is not sufficient. The motion must be denied.

Rule refused.  