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templates that claims against the state shall first be presented to the state board of examiners for allowance, and, as we construe its language, it is only on claims so presented, and "not allowed by the state board of examiners," that tho state gives its consent to be sued; and certainly as to claims which have been approved by that board there could be no necessity for such a remedy.
Judgment reversed, with directions to overrule the demur rer to the complaint.
FITZGERALD, J., GAROUTTE, J., MCFARLAND, J., HARRISON, J., VAN FLEET, J., and BEATTY, C. J., concurred.
A STATE 18 Not LIABLE FOR THE NEGLIGENCE OR MISFEASANCE of its officers or agents, except when such liability is voluntarily assumed by its legislature: Bourn v. Hart, 93 Cal. 321; 27 Am. St. Rep. 203, and note.
CONTRACTS OF A STATE are interpreted as the contracts of individuals are, and controlled by the same laws: Carr v. State, 127 Ind. 204; 22 Am. St. Rep. 624.
A WHARFINGER IS A BAILEE FOR HIRE, and is bound to use ordinary care: See note to Willey v. Allegheny City, 4 Am. St. Rep. 612. An action lies against him for damages occasioned by his negligence: See note to Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola, 30 Am. St. Rep. 692
THE LEGISLATURE MAY AUTHORIZE THE PAYMENT OF A CLAIM AGAINST THE STATE, notwithstanding the lapse of time, if at the time when the claim was incurred the claimant could not have maintained any action against the state thereon: O'Hara v. Slate, 112 N. Y. 146; 8 Ann. St. Rep. 726.
NO ONE CAN SUE THE STATE without its consent, and if this is given, the remedy prescribed must be pursued: Cornwall v. Commonwealth, 82 Va 644; 3 Am. St. Rep. 121.
GENERAL EXPRESSIONS IN A JUDICIAL OPINION are to be taken in con. nection with the case in which they are used. If they go beyond the caso they may be respected, but ought not to control the judgment in a subse. quent suit in which the very point is presented for decision: Wadsworth v. Union Paco Ry, Co., 18 Col. 600; 36 Am. St. Rep. 309.
COURT OF ERRORS AND APPEALS
SEDGEWICK V. Houston.
19 HOUSTON, 113.) Ban A CIVIL ACTIONS - AFFIDAVIT — WHEN MUST BE OBJECTED TO.
An affidavit prescribed by statate to hold a defendant to bail in a civil action is a part of the process to bring him into court. Any objection to it on the ground of defect, deficiency, or irregularity may and must be taken advantage of by the defendant in the first instance before he has given bail or entered appearance. If he fails to do so he must be considered to have waived his objection, and neither he nor his bail can. afterward avail himself of the objection. ERROR. J. M. Houston brought suit against one C. C. Thackery, who gave bond to the sheriff for his appearance, and afterward perfected his bail by giving special bail, with W. D. Sedgewick as surety. Judgment was confessed in the suit against Thackery, a capias ad satisfaciendum was issued and returned non est against him, and a scire facias issued against Sedgewick, who pleaded that no affidavit, as required by law, had been filed by Houston in the suit against Thack. ery. A demurrer to this plea was sustained, and Sedgewick appealed by writ of error.
B. Nields and E. G. Bradford, for the plaintiff in error.
191 The COURT affirmed the decision of the court below, which was delivered by Houston, J., as follows:
“In my opinion the demurrer in this case must be sus tained. The practice of the court of king's bench in England, as stated by Mr. Tidd, in regard to affidavits required to hold to bail in a civil action, is as follows: 'If there be no affidavit, or if the affidavit be defective, or not duly filed, or if the sum sworn to be not indorsed, the court will discharge the defendant 122
upon common bail.' And then he adds: ‘But if the affidavit be merely informal the defendant cannot object to it, after he has voluntarily given a bail bond, put in or perfected bail above, taken the declaration out of the office, pleaded to the action, or let judgment go by default': 1 Tidd's Practice, 164. But notwithstanding he refers to no less than ten adjudged cases in support of this general proposition, I have not found that any one of them sustains the latter portion of it, or the qualification of it, on which the counsel for the defendant in this case relies, that it is only where the affidavit is informal or defective, and not where it is wholly wanting, as in this case, that the defendant can object to it after he has voluntarily given bail bond, put in or perfected bail above, taken the declaration out of the office, pleaded to the action, or let judgment go by default. On the contrary, we find that in the case of Norton v. Danvers, 7 Term Rep. 375, that at that term of the court of king's bench many applications were made to discharge defendants out of «custody on filing common bail who had been arrested since the passing of a recent act of parliament for restraining for a limited time payments in cash by the Bank of England, which enacted that no person should be holden to bail unless the affidavit made for that purpose should contain not only every thing required by the statute 12 George I, c. 29, but also state that no offer has been made to pay the sum of money sworn to in notes of the said bank; this act not having been adverted to, and this requirement of it having been comitted in filing the affidavits before referred to in the many applications. It being a question of great importance the court did not decide it at first, but, on a subsequent day in the term, they thought themselves bound by the positive words of the act, and made most of the rules absolute for discharging the defendants out of custody, or for setting aside the bail bonds, but with costs. The contention of counsel against the rule in the case of Norton v. Danvers, 7 Term Rep. 375, was that the defendant had waived all objections to the bail bond: 1. Because he had not objected in the last term; and 2. Because he had voluntarily given the bail bond; the fact being that on receiving 123 information that a writ had been taken out against him on the 27th of June last he gave the bail hond. The counsel for the rule contended: 1. That the defendant had not waived his right to take advantage of the objection, either on account of the time that had elapsed since the bail bond was given, it having been given only a few days before the end of the last term; or on account of his having voluntarily given the bail bond, that having been given merely to prevent the arrest; 2. That this was a defect in the proceedings themselves which the defendant could not waive, and not simply an irregularity in the mode or time of proceeding.
“Lord Kenyon, C. J. “If any error appeared on the proceedings of the court I admit that the defendant could not waive without giving a release of error; and it has been doubted how far an error in law can be confessed; but the affidavit to hold to bail is only process to bring the party in, and, if he choose to waive any objection to that, he may do it; and in this case I think he has waived taking advantage of this objection. If, indeed, the defendant had been actually
, under arrest at the time, his consent to give a bail bond would not have been binding on him, because it might be considered as given under duress; but here he voluntarily gave this bail bond; and on that ground only my opinion is founded.'
But in this case the application of the defendant to be discharged on common bail was not refused by the court on the ground of a mere informality in the affidavit to hold to bail, nor was it predicted on any mere informality in it, but upon the ground distinctly recognized and ruled by the court in the decision of it that the affidavit to hold to bail is only process to bring the party in, and, if he choose to waive any objection to that, he may do it. For that is the broad and general principle ruled in the case by the court, although in that particular case they discharged the rule on 124 the ground only that defendant had voluntarily given the bail bond without waiting for arrest.
From note a appended by the reporters to this case, page 376, it appears that length of time was afterward holden in Fenwick v. Hunt to be no waiver of the objection. But in a subsequent case, Levy v. Daponte, 7 Term Rep. 376 n, it was ruled that the defendant could not take advantage of the objection after he had pleaded.
But the broad principle announced in the case of Norton v. Danvers was afterward, on further consideration, approved
and affirmed by the same court in the case of D'Argent v. Vivant, 1 East, 330, upon a rule to show cause why the bail bond given to the sheriff by the defendant in the case should not be delivered up to be canceled, and an exoneretur entered on the bail piece, on the defendant's filing common bail, which rule was obtained on the ground of a defect in the affidavit made to hold the defendant to bail, the same having been made by the plaintiff without giving herself any addition, but only describing herself by the place of her abode. The facts were that the defendant, having been arrested by process returnable the first return of the term grounded upon this affidavit, put in bail on the 27th of January, and made this application on the next day but one, the 29th.
After Jervis bad been heard in support of the rule, who relied on Jarret v. Dillon, 1 East, 18, and Barrow against the rule, who cited Jones v. Price, 1 East, 81, the court took time to consider the cases with a view to settle the practice in future; and now Lord Kenyon, C. J., delivered their opinion. After stating the rule and the facts above mentioned he proceeded as follows: “That the affidavit is defective for want of such addition cannot be disputed. The rule of court of Mich. 15, Car. 2, expressly requires that the true place of abode and true addition of every person who shall make affidavit in court here shall be inserted in such affidavit.' Several instances have lately occurred where defendants have been discharged on filing common bail, because the affidavit to hold to bail was defective in 125 not stating the addition of the party making such affidavit as required by this rule of court. And • the case of Jarret v. Dillon, 1 East, 18, in this court in the last term, the court, on argument by counsel, made a rule absolute for entering a common appearance for the defendant on a like defect in the affidavit to hold to bail. But it has been contended in the present case that, admitting the affidavit to hold to bail to be defective, yet the court ought not now to interpose, the application baving been made too late, being the day after the defendant had put in bail; that this objection is to be considered in the nature of an objection to process, which the defendant may make before putting in bail or entering an appearance; but that by putting in bail a defendant waives every objection to the procees. In the case which has already been alluded to of Jarret v. Dillon, 1 East, 18, in the last term, one objection made by the plaintiff