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Where process is issued against several defendants, some of whom only are arrested, and the sheriff, by mistake, takes a bail bond for the appearance of all, and those who are taken put in special bail, the proceedings will not be set aside ; for the court will not exercise its equitable powers in granting relief, until after a forfeiture of the condition of the bail bond; but the defendants must rely upon their plea of comperuit ad diem.85
Staying proceedings on terms. If the proceedings be regular, they will be stayed upon terms at the instance of the defendant or his bail, in order that there may be a trial in the original action. 46
It is the uniform practice of the court, in every case where the bail ask for relief on the return of the writ against them, to grant it upon certain terms.47 The terms usually imposed Terms usuare, the putting in and perfecting bail above, and paying the costs of the bail bond suit, and of the motion; and also, if necessary, or the state of the cause require it, receiving a declaration in the original action, pleading issuably, and taking short notice of trial. But if the plaintiff has lost a trial, it where
plaintiff has will be further required, that the bail consent that the bail lost a trial. bond shall stand as a security; and this has been done even where the defendant has been surrendered by his bail.49 The loss of trial must be without neglect on the part of the plaintiff, and must be occasioned by the delay of the defendant after bail is called for.50
The bail are entitled to relief on the usual terms, although the sheriff, after a rule for an attachment, for not putting in special bail, pays the plaintiff's demand. 51
4 1 Johns. Cas. 31. S.C. Cole- 325. 3 Johns. Rep. 259. 1 Johns. man, 70.
Cas. 136. 1 Caines' Rep. 68. 4 Tidd. Pract. 323.
49 2 Barn. & Ald. 585. S. C. 1 47 9 Johns. Rep. 80. 1 Johns. Chit. Rep. 270. Rep. 515. Coleman, 62.
50 Coleman, 63. Tidd. Pract. * 2 Smith. Rep. 13. Cowp. 71. 325. 1 Bos. & Pul. 334. 1 Tidd. Pract. 51 1 Wend. Rep. 105.
Where an attorney appeared for a defendant in a bail bond suit after a default had been entered, and was not apprised by the plaintiff's attorney of the state of the proceedings, who entered judgment and executed a writ of inquiry in the original suit ; on application of the defendant, the court ordered the judgment on the bail bond to stand as security, and the costs on that to remain also ; the default, and subsequent proceedings in the original suit to be set aside, on payment of the costs of entering the judgment under the statute, and executing the writ of inquiry, the defendant to plead instanter to the declaration filed, take short notice of trial, and pay the costs of the
Where special bail has been put in, but no notice given until after the arrest of the bail proceedings on the bond will notwithstanding be stayed.52 And where the service of the notice was irregular, but there had been a negligence on the part of the plaintiff in not putting the bail bond in suit at the subsequent term, the court granted a rule to stay proceedings on payment of costs and justification of bail if required.5
By suffering a length of time to elapse before applying to the court, the bail waive their right to relief.54
Application must not be delayed.
Defendants must pay
When proceedings are stayed, it is the duty of the defendcouets wine ants to pay the costs to the plaintiff, without waiting for a defor deruand. mand, or the tender of a bill ;56 but if, without the terms of
relief being complied with, the plaintiff proceeds in the original suit, he cannot afterwards revert back to the bail bond. 56
After proceedings on the bail bond are stayed, the defendant cannot plead in abatement to the original action.57
101 1 Caines' Rep. 68.
55 1 Caines' Rep. 56. Coleman, 84.
56 1 Caines' Rep. 55.
57 Salk. 519. pl. 19. 2 Bos. & Pul. 465.
34 2 Johns. Cas. 106.
For the purpose of obtaining relief, the defendant, or his How appli bail, may apply to a judge for an order to show cause why proceedings should not be stayed; or to the court on affidavit and notice in the usual manner. 58 The notice and affidavits Notice and on which the application to set aside or stay the proceedings is made, must be entitled not in the original, but in the bail bond suit.59 The affidavit must state the time when the writ was served and returnable.
OF PROCEEDINGS AGAINST THE SHERIFF.
It is provided by statute, that “if special bail shall not be Rule to put put in and perfected within twenty days after the return day of bail. the writ on which the arrest was made, upon filing an affidavit that such bail is not put in and perfected, and that such writ has been returned served, a rule may be entered with the clerk of the court, in vacation or in term, requiring the sheriff or other officer making such arrest, to put in special bail within twenty days after service of notice of such rule."60
The affidavit required to be filed previous to the entry of the rule, must state that the writ has been returned served ; and therefore if the sheriff neglect to return the writ, the plaintiff must rule him to do so.61
For this purpose, it is provided by rule, that “the rule to Rule to rereturn a writ shall be, that the same be returned within twenty
1 Dunlap. Pract. 190.
60 R. St. P. 3. Ch. 6. T. 1. s. 14. 3 Johns. Rep. 448. 5 Johns. Vol. 2. p. 349. Rep. 367. 12 Johns. Rep. 461. n. 61 1 Dunlp. Pract. 193. 3 Black. (a.) 1 Bos. & Pul. 337. Willes, 461. Com. 291.
rvice of notice.
days after notice thereof, or that an attachment issue ; and on filing an affidavit of service of a notice of such rule, and of the delivery of the writ, the officer's default may be entered and an attachment issue of course."62 As the object of the rule is to bring the sheriff into contempt, it has been held that the notice must be served upon him or one of his deputies personally ;6 but this does not seem necessary under the revised statutes.64 The rule and default are entered by the attorney in the book of common rules. 65
It has been held that this rule cannot be entered after the plaintiff has taken an assignment of the bail bond, if valid ; for by taking such assignment he discharges the sheriff ;( though if the bail bond be void, it is otherwise. 67
is otherwise.67 So it has been holden that if the sheriff appoint a special bailiff to arrest the defendant, at the request of the plaintiff or his agent, he cannot be ruled to return the writ;6* but he is notwithstanding responsible for the safe custody of the defendant, after the arrest has been made.69 And in all cases it is the duty of the sheriff to return the writ whether ruled or not, and he is liable to an action if he neglect to do so.70
After the return of the writ, whether voluntary or compelled
by rule, the plaintiff may proceed to rule the sheriff to put Rule for at- in special bail according to the provisions of the statute. 71 If
such bail be not put in and perfected within the time specified in such rule, upon filing an affidavit of the service of notice thereof, a rule may be entered in vacation or in term, that an attachment issue against the sheriff or other officer who may have made the arrest, and such attachment may be issued accordingly."
62 Rule 15.
68 2 W. Black. Rep. 952. 4 63 1 Tidd. Pract. 329.
Term Rep. 119. 64 R. St. P. 3. Ch. 3. T. 2. s. 55, 69 8 Term Rep. 505. et vide 2 56, 57. Vol. 2. p. 285. Ante, vol. 1. Esp. Rep. 591.
70 R. St. P. 3. Ch. 7. T. 6. s. 77. “Of common rules Vol. 2. p. 440. 15 Johns. Rep. and rules by consent."
456. And see as to return of writs, 66 Gilb. C. P. 21. 1 Salk. 99. 3 ante, Vol. 1. p. 389. Bos. & Pul. 564.
71 Ante, p. 21. 67 1 Wils. 223.
65 See post,
The statute further provides that “the sheriff or other offi- Sheriff may cer who shall have made an arrest, may, for his own indemni- for his own ty, put in special bail to the action, as now practised in courts of common law, when such bail shall have been required as herein directed, and the putting the same in shall have been neglected by the defendant, so as to subject such sheriff to an attachment; and the putting in such bail, by such officer, shall not be deemed a performance of the condition of the bond taken on the arrest; but such officer may, notwithstanding, and after prosecute such bond, and recover the amount of all damages he may have sustained by the neglect of the defendant to put in such bail." And in the next section it is provided, that “ upon a sheriff being brought into court on such attachment, the same proceedings shall be had as are now practised upon a sheriff's disobedience of a rule to bring in the body of the defendant, and such sheriff shall be liable in the same manner and to the same extent, and the court shall have the like
power in all respects."74
The sheriff, according to the former practice, has the whole Sherif' has of the day on which the rule expires to put in special bail, and day to put in the attachment cannot therefore be issued until the next day.75 And, as appears from the terms of the statute, the bail must not only be put in but perfected.
The attachment either for not returning the writ, or not putting in bail, is a criminal process, directed to the coroner when it issues against the present sheriff, and when against the late one, to his successor. All the proceedings until the
72 R. St. P.3. Ch. 6. T. 1. s. 15. Vol. 2. p. 349.
3 Ib. s. 16. Formerly this was otherwise, 19 Johns. Rep. 292.
74 Ib. s. 17. For proceedings on attachments, see post, chap. 13.
75 2 Cowen. Rep. 495. 7 Term Rep. 524.
76 Bingham on Executions, 283.