
    Kirkham against Fox.
    Where an action is removed to this Court, from a Court of C. P., by habeas corpus, the plaintiff is entitled to special bail, if the defendant was held to bail in the Court below, though, if the suit had been originally commenced here, no bail would have been required.
    THIS was an action of slander, originally commenced in the Court of Common Pleas of Putnam county, and removed into this Court by habeas corpus. By the rules and practice of the Court below, special bail may be required m an action of slander; and special bail had been filed in the cause, in that Court. On the return of the habeas corpus to this Court, the defendant filed common bail. The plaintiff claiming to be entitled to special bail, also, in this Court, after the usual rule for that purpose, sued out a procedendo.
    
    
      Nelson, for the defendant,
    now moved to set aside the procedendo, on the ground, that this Court, in requiring bail on the return of a habeas corpus to a Court of Common Pleas, would be governed by the same rule as if the cause had been originally commenced in this Court; and he relied on the case of Caldwell v. Blanchard, (14 Johns. Rep. 331.)
    
      Todd, contra,
    cited Vosburgh v. Rogers, (8 Johns. Rep. 91.) and Bell v. Hall, (12 Johns. Rep. 152.)
   Per Curiam.

There is no contradiction in the cases cited. If the defendant was held to bail in the Court below, the plaintiff is entitled to bail, on its removal here ; and though no bail should be required, in the Court below, yet the plaintiff may insist upon special bail in this Court. The motion must be denied.

Motion denied. 
      
       Vide 1 Dunlap’s Pr. 224.
     