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writ of attachment, including the rule for the attachment, are entitled in the original cause. The proceedings, after the attachment is granted, are in the name of the people.78

If the coroner or sheriff, being called upon by rule, neglect to return the attachment, he may be attached himself; and the attachment in such case is directed to elisors.79

fendant is in

costs.

Liability of The liability of the sheriff when brought into court upon sheriff.

the attachment is not altered by the statute; and the general rule is, that on a non-compliance with the rule to put in special bail, if the sheriff is fixed and a trial lost, he must pay the

whole debt, so provided it do not exceed the penalty of the bail Where de- bond.81 But if the defendant has been insolvent from the besolvent, pro- ginning, so that the plaintiff could have lost nothing, the court stayed er will order a perpetual stay of proceedings against the sheriff

as to the debt, allowing the plaintiff to proceed and collect all costs.82 And this was done where the sheriff had neglected to appear upon his recognizance taken upon the attachment, by reason whereof there was judgment against him and his bail.s

Where a bail piece had been put into the post-office, and directed to the clerk at Utica, but was lost in its transmission, the court discharged the sheriff from an attachment which had issued against him, although a trial had been lost, upon his putting in and perfecting good bail, and paying the costs of the proceedings against him. 84

It is incumbent upon the plaintiff to pursue his remedy his remedy against the sheriff within a reasonable time after the defend

ant's neglect to file bail, otherwise it may be lost by delay. 85 Thus, in an English case, where there was a delay of ten

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Plaintiff must pursu

without de. lay.

83 Ibid.

77 9 Johns. Rep. 160.

81 3 East. Rep. 604. 78 9 Johns. Rep. 160. 5 Johns. 83 2 Cowen. Rep. 504. "Rep. 235. 3 Term Rep. 253. 7 Term Rep. 435. contra 3 Term 84 2 Wendell. Rep. 253. Rep. 133.

85 17 Johns. Rep. 35. 7 Term 79 W. Black. Rep. 911. 1218. Rep. 448. 1 Taunt. 111. 9 East.

80 2 Cowen. Rep. 504. 2 Saund. Rep. 468. et vide 9 Johns. Rep. 61. f.

73.

chief.

months, and the defendant had absconded, and his bail become insolvent, the court set aside the attachment which had issued against the sheriff:86 and under somewhat similar circumstances this court held that the sheriff was not liable to an attachment after a delay of eighteen months.87 And on the same principle, after the rule for an attachment, the writ must be sued out within a reasonable time, or the sheriff is discharged.88

By declaring in chief before bail is put in, or before excep- Declaring in tion, the plaintiff waives all objection to the sufficiency of the bail, and afterwards cannot proceed against the sheriff. So Taking cogif the plaintiff give time to the defendant by taking a cognovit, it is a discharge to the bail ;90 and consequently, as the sheriff could not, under such circumstances, resort to the bail bond for bis indemnity, he is exonerated from his responsibility to the plaintiff.91 But the death of the defendant, after the con- Death of detempt has beeo incurred, and before the attachment has issued, will not discharge the sheriff from his liability. 92

novit.

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fendant.

ascertained.

With respect to ascertaining the amount due in the original How amount action, and the proceedings thereon, it is provided in the nal action revised statutes, that " when a sheriff shall be brought into court upon an attachment for not putting in bail to the action, the court may, by summary proceedings, ascertain the amount due to the plaintiff in the action, in the same manner as if interlocutory judgment had been entered against the defend

And it is further provided, that “ if the court shall determine that the amount so ascertained, ought to be paid by the sheriff, and if the sheriff shall confess a judgment to the plaintiff for the amount so ascertained, with the costs of the suit and of the proceedings, the court shall thereupon stay all other proceedings against him, until he shall have hrad a rea

ant."95

7 Term Rep. 448.

90 See post, chapter third. 37 17 Johns. Rep. 35.

91 1 Taunt. 159. et vide 1 Taunt. * 3 Bos. & Pul. 151. 9 East. 489. Rep. 468.

92 3 Term Rep. 133. 9 Johns. Rep. 72. ante, Vol. 93 R. St. P. 3. Ch. 6. T. 1. s. 18, 1. p. 409.

349. VOL. II.

4

Vol. 2. p.

sonable time to obtain judgment on the bond taken on the arrest of the defendant, and to collect the amount so ascertained to be due to the plaintiff."94 The sheriff upon being served with the attachment, may at his option, “confess a judgment to the plaintiff for the amount due him, with the costs of the suit and of the proceedings, and shall thereupon be discharged from arrest on such attachment; and proceedings on such judgment shall be stayed, as in the last section prescribed, and no execution shall be issued thereon, without the leave of

the court.' If after a reasonable time allowed, the sheriff on sheriff's shall not satisfy the plaintiff in the action, the amount due

him, with costs and interest, the statute then directs, that " the court shall award execution on the judgment confessed by such sheriff as herein provided; and if such execution be returned unsatisfied in part or in whole, the same proceedings shall be had on the official bond of such sheriff, to collect such deficiency, as are provided in other cases of delin

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Execution and action

quency."96

Proceedings

If the proceedings against the sheriff are irregular, they may be set aside, o irre- may be set aside; or if regular, may be stayed by the favour stayed if regular.

and indulgence of the court in order to let in a trial of the merits, for the benefit of the sheriff,97 or of the defendant or bis

bail.98 Affidavit of In the king's bench the court require on an application to set merits.

aside a regular attachment against the sheriff, either an affidavit of merits, if the application is made on the part of the original defendant, or if made on the part of the sheriff or the bail, an affidavit showing that the application is really made on their behalf, at their expense, and for their indemnity, and without collusion with the original defendant.99

94 Ib. s. 19. p. 350.
95 Ib. s. 20.
96 lb. s. 21.
37 2 H. Black. Rep. 235.

98 i Chit. Rep. 237. et vide 2 Saund. 61. f.

99 1 Tidd. Pract. 338, 339. 3 Maule & Selw. 299. et vide 7 Term Rep. 239. 1 New Rep. 123.

where trial

lost.

mains as se

If the plaintiff has not lost a trial, the court will set aside the Terms proceedings, upon putting in and persecting bail above, and has not been payment of costs. 100 But if a trial has been lost, the court where trial

Jost, attachwill further require that the attachment shall remain in the ments reoffice, and stand as a security to the plaintiff for the sum re-curity. covered. On setting aside a regular attachment, on payment of costs, the question whether or not the attachment shall stand as a security, depending upon the fact whether a trial has been lost, it is for the plaintiff who seeks to qualify the rule, to show by his affidavit the necessary facts which may entitle him to do so.?

If the sheriff has taken a bail bond, he may resort to the Sheriff's

remedy. defendant or his bail, by putting it in suit against them; but when he has been guilty of a breach of duty, in discharging the defendant out of custody, without the plaintiff's assent, upon his own undertaking to appear and put in bail, instead of taking a bail bond, the court will not assist him by staying the proceedings in an action for an escape, or by setting aside the attachment; and it has been decided that he cannot, after paying the debt and costs, maintain an action against the defendant for money paid."

1994 Term Rep. 352. 2 H. Bl. 2 5 Taunt. 606. 1 Chit. Rep. Rep. 235. et vide 1 Johns. Cas. 271. note. 412.

3 7 Term Rep. 109. 239. 2 Barn. ' 1 Chit. Rep. 237. 270. 357. 4 & Ald. 354. 1 Taunt. 119. 6 Taunt. Term Rep. 352.

554. contra 1 Price, 103.

4 8 East. Rep. 171,

28

CHAPTER III.

OF PROCEEDINGS AGAINST SPECIAL BAIL UPON THEIR RECOGNI.

ZANCE; THEIR LIABILITY; AND OF BAIL'S SURRENDERING THEIR
PRINCIPAL, A THE ENTRY OF EXONERETUR.

PROCEEDINGS AGAINST BAIL.

Debt or scire facias

Recogni. zance roll, and when filed.

Special bail may be proceeded against on their recognizance in an action either of debt or scire facias.

For this purpose the plaintiff must enter their recognizance upon a roll called a recognizance roll, which is filed with the clerk; and this should in strictness be done before any proceedings against them; but as the bail can take advantage of an omission in this respect, only by plea of nul tiel record, it does not seem absolutely necessary that the roll should be filed until the bail are called upon to plead. The roll must be entitled of the term in which the process in the original suit was returnable; and contains a recital of the proceedings, concluding with the entry of the recognizance.3

It is provided by statute, that the plaintiff “shall not be entitled to bring any suit on the recognizauce of bail, until,

3 Ib. 321.

1 1 Arch. Pract. 321. 2 1 Arch. Pract. 320.

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