We think this case clearly within the principle of Flack v. Eager ; and in The People v. Judges of Onondaga, (1 Cowen, 54, 56,) the Court say, that if bail who are excepted to, do not justify within the time allowed by the rules of the Court, they cease to be bail; and the plaintiff cannot hold them by waiving the exception, even where there is no surprise.
Motion granted.