People ex rel. Boyden v. Superior Court

By the Court, Nelson, Ch. J. In Flack v. Eager, 4 Johns. R. 185, the proceedings against the bail were set aside, and an exoneretur ordered ; but there the exception had never been waived, or erased. In The People v. Judges of Onondaga, 1 Cowen, 54, after the exception, the plaintiffs being indemnified against the insufficiency of the bail, served notice of waiver, received a plea, and proceeded to judgment. The common pleas refused to order an exoneretur, and this court compelled them to make such order. It does not appear whether the notice of waiver was after the time for justification or not. The opinion,. however, seems to be placed upon that ground. The court say, if special bail do not justify within the time allowed by the rules, they cease to be bail. The plaintiffs cannot then hold them by waiving the exception. In Thorp v. Faulkner, 2 Cowen, 514, after the exception, the attorneys for both parties agreed by parol to waive it, and to proceed in the case. The court ordered an exoneretur, putting the decision principally upon The People v. The Judges of Onondaga. It does not appear here, whether the waiver was after the time for justification or not. I infer, however, that it was. It is well settled that the bail cease and are tobe deemed out of court, if they do not justify within the time allowed ; and after this, it may well be that the plaintiff cannot waive the exception, and that even the attorneys cannot do so without the assent of the bail, 9 Wendell, 478 ; their contract is at an end. But if the waiver takes place before the time for justification has expired, I am unable to discover any reason against giving it effect, either in respect to the bail themselves or their principals ; nor can I find any case deciding the contrary. Indeed, it is settled, that serving a declaration in chief after exception, 609 operates per se as a waiver of it; if this act of the party indirectly operates as a waiver, why should not effect be given to an express waiver 1 Notice of exception must be in writing, and it may well be that a parol waiver would be insufficient. Understanding the cases as above explained, as at present advised, I think the alternative writ should issue.