
    Oliver Arnold agt. Benjamin Thomas.
    Where a defendant is discharged on filing common bail, in pursuance of rule of this court, and the bail-bond to the sheriff is delivered up, and the defendant has left the state, it is too late to move to vacate the rule discharging defendant on common bail, and to require him to give special bail: the order having been complied with, he could not be retaken.
    
      February Term, 1846.
    Motion by plaintiff to vacate an order of this court, discharging defendant on common bail.
    On the 11th December, 1845, at December special term, a rule was granted by default, on motion of defendant, discharging the defendant in this cause, on his filing common bail. On the 22d December, a copy of the order was served on plaintiff’s attorney. On the 24th December, defendant filed common bail, and gave plaintiff’s attorney notice of it; shortly afterwards, and before notice of this motion, the bail-bond to the sheriff was delivered up and canceled, and a rule entered and notice given to declare before the end of the next January term. Defendant was a resident of Pennsylvania, and at the time of this motion was in Pennsylvania.
    Plaintiff’s attorney stated that on the 29th November last, he mailed papers directed to his counsel in Albany, to oppose the defendant’s motion; immediately after the copy order was served on him;' on the 22d December last, he wrote to his counsel, requesting information in the ^matter, and, receiving no reply, again wrote on the 14th January last, and received an answer to the last letter on the 26th January, by which he was informed by his counsel that the papers to oppose the motion had never been received by him, nor the first letter of inquiry written by plaintiff’s attorney. Plaintiff’s attorney stated that the plaintiff would be in danger of losing his debt, unless defendant was required to put in special bail.
    C. Stevens, plaintiff's counsel.
    
    I. A. Gates, plaintiff's attorney.
    
    
      M. T. Reynolds, defendants counsel.
    
    J. H. Thomas, defendants attorney.
    
   Bronson, Chief Justice.

The bond has been given up, and the defendant left the state before notice of this motion; and further, the order had been complied with and the defendant could not be retaken.

Motion denied with costs.  