Matoon

Mr. Justice Terry concurred.

This was an action in the Court below upon a bail bond. Several questions are raised by the record which I propose briefly to examine, with no expectation, however, of reconciling the apparent contradictions of the statute, which have hitherto been a stumbling block to the profession, and defied judicial exposition.

The first point is, as to the sufficiency of the affidavit, and whether the bail can take advantage of any informality or defect in it.

An examination satisfies my mind that the affidavit, on which the order of arrest was issued, is sufficient, and this would dispose of the point, were it not desirable that some rule should be established to govern future cases.

Whatever doubt may have heretofore existed in the minds of this Court or the bar, we are satisfied, upon the weight of authority, that this defence cannot be set up by third parties, and not even by the defendant himself after judgment. By putting in bail and neglecting to move to be discharged, he consents to process and waives all irregularities in this respect. 1 East., 81; 6 Taunton, 185; 10 Bingham, 506; 24 Wend., 275 ; and 19 Wend., 122 .

The next question is how and when…