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other averments not very material, and so conclude their POSterne v. * plea in bar of the action: to which plea the plaintiff demurs HANSON and

in law.

HOOKER.

*

And it was argued for the plaintiff, that the action might [60]

required by the second branch of the statute, is by bond; therefore an agreement in writing, made by a third person with the bailiff of the sheriff, to put in good bail, for a person arrested on mesne process, on or before the return of the writ, or to surrender the body to the bailiff, or on default thereof to pay debt and costs, in consideration of his discharging the party arrested, is held to be void. Indeed if the security had been by bond it would be void, because it has been adjudged that the statute requires the bond to be made to the sheriff himself as such by his name of office, and not to the sheriff's bailiffs; for though the statute mentions the bailiff of a franchise, it means those officers who have the return of process; but where it is directed to the sheriff, the bond must be made to him. And the condition of the bond must be for the appearance of the party at the return of the writ, and for no other purpose; so that if there be any other condition expressed in the bond, or the bond be single without any condition at all, or be with an impossible one, the bond is void by the statute. 1 Term Rep. 418. Rogers v. Reeves. Cro. Eliz. 862. Cotton v. Wale. Ibid. 672. Scryven v. Dyther. Dyer, 119, 120. Dyer, 119, 120. 10 Rep. 100 a. b. 101 a. Beawfage's case. 3 Lev. 74, 75. Graham v. Crawshaw. 1 Str. 399. Mills v. Bond. S. C. Fort, 363. 2 Term Rep. 569. Samuel v. Evans. But the statute is confined to obligations given to the sheriff, and does not extend to such as are given to, or

[e] 4 East, 568. Sedgworth v. Spicer. 2 Smith, 52. Parker v. England.

for the benefit of, the plaintiff. Therefore where an attorney undertakes to appear for the defendant, he is bound to do so, and the court will enforce a performance of such his contract with the plaintiff, by attachment, though his undertaking be not in the form prescribed by the statute. Cro. Eliz. 190. Milward v. Clerk. 1 Sid. 132. Benskin v. French. S. C. 1 Lev. 98. 1 Term. Rep. 422. Rogers v. Reeves. So a bond given to the plaintiff in another form than that which the statute prescribes is valid; the distinction being where the undertaking is to the plaintiff and where it is made to the sheriff. 2 Mod. 304, 305. Hall v. Carter. [e] If it appear on the face of the declaration, or upon oyer, that the bond is void by the provisions of the statute, the defendant may demur; but if it do not he must plead the statute; [f] or, if by pleading or otherwise, the objection appears in any part of the record, he may move in arrest of judgment, 2 Term Rep. 575. Samuel v. Evans. If the bond was in truth made to the sheriff as such, but by mistake he declares as upon a common bond, and the defendant prays oyer of the bond, and says, "it is read to him, &c." without setting it out, and then prays oyer of the condition, which he sets out at large in hæc verba, whereby it appears to be a bail bond, and pleads the statute 23 H. 6. and that the bond was given for ease and favor, the plea will prima facie be an answer to the action, because it it not alleged that the bond

[f] i. e. He must plead such facts as shew that it is void by the statute.

HANSON and

POSTERNE v. well be maintained upon the clause of the statute," that if the sheriff return a cepi corpus or reddidit se, &c. he shall be chargeable to have the bodies, &c." and here the defendants have let the prisoner at large, and returned cepi corpus,

HOOKER.

66

was made to the plaintiff as sheriff; but the plaintiff may make his declaration good in his replication, by praying that the bond may be enrolled, and then setting it out at large, and averring that he was sheriff, &c. the arrest of the defendant, &c. and that the bond was made to him as sheriff, and traversing the ease and favor. Carth. 301, 302. Abney v. White. See the form of doing of it, 1 Lutw. 680.685. Blewet v. Appleby. See also 1 Saund. 9 b. Jevens v. Harridge, note (1). The bond must also be taken by the sheriff before the return of the writ, otherwise it is void. 1 Ld. Raym. 352. Pulleinv. Benson. [g]

But it is not required by the statute to insert the nature of the action in the condition of the bond; if it sets forth the parties, and the time and place of appearance substantially, it is sufficient: therefore a mere informality, or variance between the condition and process, in the description of the action, or of the time and place of appearance, does not vitiate the bond. Thus where the condition was to answer the plaintiff in a plea of debt generally, but the writ was to answer the plaintiff in a plea of debt for 3201. the variance was held not to be material. Cro. Jac. 286. Villiers v. Hastings. So where the latitat was to answer the plaintiff in a plea of trespass, and the condition was to answer the plaintiff generally, without mentioning any plea, it was held to be no objection; for no other action shall be intended, the statute only requiring an

appearance, and not the words ad respondendum, &c. which are mere surplusage. 2 Lev. 123, 124. Kirkebridge v. Wilson. So where the condition was to appear in trespass of 1007. but the writ was in a plea of trespass, and also to a bill of debt of 1007. the bond was held good; for by Holt C. J. the appearance, the day, the court and the party at whose suit, &c. are well expressed as they should be. 2 Show. 51. Gardiner v. Dudgate. And where the writ was to answer the plaintiff in a plea of trespass, and also to a bill for 100l. of debt, and the condition was to answer in a plea of trespass of 100l. the variance was held to be immaterial. Sir T. Jones, 137, 138. Cudwell v. Dunkin. So where a writ was in a plea of trespass, and also to a bill, and the condition was in a plea of trespass only, the bond was nevertheless held good. 6 Mod. 122. Grovenor v. Soame. So an objection, that in the condition of the bail bond it was not said whose bill the defendant was to answer, was over ruled, and Parker C. J. said, that the statute only requires that the sheriff should take a bond conditioned for the appearance of the party such a day at Westminster; it does not say even to answer the plaintiff. 10 Mod. 327. Rench v. Britton. So where the process was in an action of trover, and the condition was to appear to answer in a plea of trespass on the case upon promises; though it was urged to be at variance, the court said "the respondendum is only surplusage, "and shall be rejected." Fort. 368.

[g] So it is void if executed before the condition be filled up. 3 Campb. 181. Powell v. Duff.

HANSON and HOOKER.

therefore by the express words of the statute they are charge- POSTERNE v. able with the body of the prisoner. For before the making of the statute, if the sheriff had taken a prisoner by writ, and let him at large, and afterwards returned cepi corpus, it is clear that he was chargeable to the action of the party, either for an escape or for a false return, at the election of the party grieved (4); so it was concluded it should be in the present

case.

If a sheriff be23 H. 6. had arrested a perprocess, and let

fore the statute

son upon mesne

him at large, and afterwards

returned cepi corpus, he was liable to an action either for an escape or for a false return.

Davenport v. Parker. And where the sheriff, upon an original writ in a plea of trespass upon the case upon promises, took a bail bond conditioned for the defendant's appearance in a plea of trespass, the court held it to be valid. 6 Term Rep. 702. Owen v. Nail. It should seem therefore from these authorities that the case of More v. Finch. 2 Lev. 177. where it was held, that the bond was void because the condition did not state whose bill the defendant was to answer, is not law. So with respect to the place of appearance, it has been adjudged that the condition of the bond for the defendant to appear before his majesty's justices of the king's bench at Westminster was no variance from the writ, which was to appear before our lord the king at Westminster. 2 Lev. 180. Kirkhide v. Dyke. S. P. 2 Vent. 237. Lawson v. Haddock. And where the writ by original was returnable before our lord the king, wheresoever he should then be in England, and the condition was without the words wheresoever, &c. the court said that there are no set forms

[h] So where the writ was to appear before the king wheresoever, &c. and the condition before the king at Westminster it was held good. 9 East, 55. Jones v. Stordy. See also 3 B. Moore, 214. Bonfellow v. Steward. But where the writ was to appear before his majesty's justices of the bench at Westminster, and VOL. II. PART I.

of words for those bonds, but if in substance they are to appear according to the design of the writ, it was sufficient: and they cited a case, where the condition of the bond was to appear in the office of pleas in the court of exchequer at Westminster, and held well, though the process was to appear before the barons, and that they would understand that by appearing before the king, was meant before the king in his court, and not before the king in his person, and judgment was given for the plaintiff. 2 Str. 1155. Shuttleworth v. Pilkington. S. C. cited in 1 Term Rep. 240. King v. Pippett. [h]

If the defendant does not appear at the return of the writ according to the condition; that is, if he does not put in and perfect bail above in due time, the bail bond is forfeited; and the plaintiff may either take an assignment of it, or proceed against the sheriff to compel him to return the writ, and bring in the body of the defendant, or in other words to put in and perfect bail. If the bail below are sufficient, it is usual for

the condition before the king at Westminster, the variance was held fatal, for they are different courts; 6 Taunt. 551. Renalds v. Smith; 2 Marsh. 258. S. C.; for which difference see 3 M. & S. 166. Impey v. Taylor. 7 Taunt. 271. Mil. v. Pollon. 1 B. Moore, 19. S. C.

N

POSTERNE V.

HOOKER.

The sheriff is bound by the

statute to let a prisoner at large, on rea

and therefore

not liable to an action for so doing.

If the sheriff re

turn cepi corpus, but has not the

body at the day, he is to be amerced.

But it was answered and resolved by the court, that the HANSON and action does not lie, because now the sheriff is compellable by the statute to let the prisoner at large, upon reasonable sureties, &c. (5); therefore when the law compels the sheriff to do so, he shall not be subject to an action for doing his duty in obedience to the law. And though in the time of the sonable sureties, late disorder, there was an opinion that such action lies, yet the court altogether condemned such opinion, and said, that the law was clearly otherwise. (6) And as to the clause of the statute, that if the sheriff return cepi corpus, he shall be chargeable to have the body, &c. it is to be understood that the sheriff may be (7) amerced for not having the body at the day; and because he is liable to be amerced to the king for not having the body, the statute gives him advice that the sureties law a person ar- shall have sufficient within the county for his indemnity. And at common law if the sheriff had arrested any man by the king's writ, the prisoner could only be delivered by writ de homine replegiando, as Twysden justice said, and as the law seems to be (8); and if the sheriff had arrested a prisoner, and detained him in his custody, and, at the day of the return of the writ, returned cepi corpus, but had not the body in court, the sheriff would have been amerced; but the party could not have maintained an action against him; so now the statute compelling him to let the prisoner at large upon reasonable sureties, &c. and if he do so, as it is averred in his plea he did, he shall be in the same condition as if at com

At the common

rested by writ

could only be delivered by writ de homine replegiando, and if the sheriff

detained him and returned

cepi corpus, but had not his body in court at the return of the writ, he was amerced. So it is now since the

statute.

[blocks in formation]

HOOKER.

mon law he had detained the prisoner in his custody, and PosTerne v. shall only be amerced to the king for not having the body of HANSON and the prisoner, as he would have been before the statute, when he kept the prisoner in his custody. Wherefore it was adjudged for the defendants by the whole court. Winnington for the plaintiff; Saunders for the defendants.

Note-It was agreed by the whole court, that the averment by these words, namely (*), “the said Obedia Allen and Richard "Lee having (†) sufficient within the said county, to wit, at "Westminster aforesaid, &c." was as well as if it had been by the words "That the said Obedia Allen and Richard Lee had sufficient within the said county, &c. (9)

66

of

c. 16. s. 20. it is enacted, "that if any person shall be arrested by any writ, "bill or process issuing out of any "the courts of record at Westminster, "at the suit of any common person, and "the sheriff or other officer taketh bail "from such person against whom such "writ, bill or process is taken out, the "sheriff or other officer at the request " and costs of the plaintiff in such action "or suit, or his lawful attorney, shall "assign to the plaintiff in such action "the bail bond, or other security, taken "from such bail, by indorsing the same, "and attesting it under his hand and "seal in the presence of two or more "credible witnesses, which may be "done without any stamp, provided "the assignment so endorsed be duly "6 stampt before any action be brought << thereupon; and if the said bail bond, or assignment, or other security taken "for bail, be forfeited, the plaintiff in "such action, after such assignment "made, may bring an action and suit "thereupon in his own name, and the "court, where the action is brought,

66

may by rule or rules of the same "court, give such relief to the plaintiff " and defendant in the original action,

321. Hill v. Jones; and in C. B. it seems that the plaintiff may except

[ocr errors]

The words "0. "and R. having "sufficient" are as good words that the said

of averment as

"O. and R. had "sufficient." * See

P. 55.

+[61]

"and to the bail upon the said bond or "other security taken from such bail,

as is agreeable to justice and reason, " and that such rule or rules of the said "court shall have the nature and effect "of a defeasance to such bail bond or "other security for bail." This statute is compulsory upon the sheriff to assign the bail bond at the request of the party, and if he refuses, he is liable to an action upon the case. 7 Term Rep. 122. Stamper v. Milbourne. According to the practice of the court of K. B. if the defendant neglects to put in and perfect bail above, and the plaintiff does not declare in the original action within two terms after the return of the writ, he is not held to be out of court, but may still take an assignment of the bail bond, for he is not bound to declare de bene esse within the time limited for the defendant's appearance, and after that time he cannot declare until the defendant has actually appeared. 2 Str 1262, Merryman v. Carpenter. Tidd's K. B. 156. 2d edit.; but in the C. B. the practice is otherwise; for it is held to be the settled practice of that court, that if the plaintiff does not declare within two terms, that is, before the

even after he has taken an assignment. Tidd, 279.

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