Commonlaw rule, and ed. to the officer making such arrest, with the addition of his name of office, a bond, in a penalty equal to the sum endorsed on the writ, with two sufficient sureties, conditioned that such defendant will appear in the action commenced by such writ, by putting in special bail within twenty days after the return day specified in such writ, and by perfecting such bail, if required, according to the rules and practice of the court."5 And by a provision in a previous chapter, "no sheriff or other officer, shall take any bond, obligation or security, by colour of his office, in any other case or manner than such as are provided by law; and any such bond, obligation or security, taken otherwise than as herein directed, shall be void." At common law, the sheriff was not obliged to bail a when alter- defendant arrested upon mesne process, unless he sued out a writ of mainprize, though he might have taken bail of his own accord." This defect in the law, was remedied in England, by the statute 23 Hen. 6. C. 9, which was enacted in this state, as a part of the "Act concerning sheriffs," &c. The provisions in the revised statutes, are substantially the same as those contained in these acts.78 The decisions referred, to 75 R. S. P. 3. Ch. 6. T. 1. s. 11. according to the exigency of such Vol. 2. p. 348. 76 Ib. Ch. 3. T. 2. s. 59. Vol. 2. p. 286. 77 2 Saund. 60. c. 61. f. 6 Bac. Abr. 179. Boote 61. Gilb. C. P. 20. 78 See 1 R. L. 423. s. 13. The language of this statute is as follows: "And be it further enacted, that every sheriff and other officer, shall let out of prison all persons by them arrested or in their custody, by virtue of process in any personal action, upon reasonable sureties of persons having sufficient within the county where the persons be so let to bail, to answer process, except persons so in prison by condemnation, execution, capias utlagatum, or by special order of any court or justices; and no sheriff or other officer shall take any obligation for any cause aforesaid, or by colour of their office, but only to themselves and by the name of their office, and upon conditions written, that the prisoner named therein shall appear at the day and place required in the said process; and if any sheriff or other officer take any obligation in other form, by colour of their offices, it shall be void." are of course on the former statute; which for convenience is given below. Sheriff must take bond when tendered.] The statute is compulsory on the sheriff to bail a defendant in custody who tenders a bail bond, with sufficient sureties; and he is liable to an action, if he refuse to do so.79 It was formerly necessary to maintain the action, that it should appear that the parties who were offered as bail, had sufficient within the county where the arrest was made; but the clause rendering this requisite, is omitted in new act.80 If the sheriff, who made the arrest, go out of office before the return of the writ, the obligation to let the defendant to bail, devolves upon his successor; who must take the bail bond in his own name : and he is bound to give no other notice to the plaintiff in such case, than by his endorsement on the writ.81 The bond must be taken before the return of the writ; otherwise it is void.82 Bond when void; sureties.] A bail bond given voluntarily, without service of process, is valid;83 but if no process were issued, it has been held that the bond is void.84 The clause in the statute requiring reasonable sureties, (in the present act "two sufficient sureties,") was introduced for the benefit of the sheriff; and, therefore, though he may insist upon two sureties, yet he may take a bond with one surety only. And if he takes insufficient sureties, he is not liable to an action;8 85 86 792 Saund. 59. 61. c. d. 7 Johns. Rep. 138. 6 Bac. Abr. 180. Cro. Car. 196. 2 Mod. 31. 84. 180. Gilb. C. P. 20. 80 15 East. 320. 17 Johns. Rep. 137. 82 2 Saund. 60. a. 7 Johns. Rep. 138. Ld. Raymond 352. 1 Wils. 223. 4 Maul. & Selw. 338. 2 Term. Rep. 569. 83 2 Saund. 59. b. Str. 444. 643. 4 Cranch 421. 84 Sayer 116. 35 2 Saund. 61. d. 6 Bac. Abr. 181. Cro. Eliz. 624. 808. 852. 862. 10 Rep. 101. 36 2 Saund. 60. c. 61. d. 2 Mod. 84. 177. Cro. Eliz. 808. 852. 862. 1 Mod. 227. pl. 17. 239. pl. 3. Sed vide Ld. Raymond. 425. Salk. 99. pl. 6. 6 Mod. 122. Must be by bond. Statute does not extend but the plaintiff must proceed by attachment, after having ruled him to bring in the body. And the sheriff may allow the defendant to go at large without any sureties whatever, provided he has him at the return of the writ;87 but if he have him not at the return of the writ, or if, having taken the defendant in custody, he should after the return of the writ escape, the sheriff is liable, whether the escape be voluntary or negligent.89 Form of security; when void.] The security must be by bond; and it must be executed by the defendant and his sureties: therefore, an agreement in writing, made by a third person with the sheriff or his officer, to put in good bail for a person arrested on mesne process, on or before the return of the writ, or to surrender pis body, or in default thereof to pay the debt and costs, in consideration of the discharge of the party arrested, is void.90 Or if a promissory note be endorsed to the officer for his security, the assignment is void.91 So an engagement of the defendant's attorney to the officer, that he will give a bail bond in due time, if the defendant is discharged, is contrary to the statute, and void.92 The terms of the statute are now, indeed, much stronger and more extensive than before: for formerly the statute only spoke of an obligation; but now "any bond, obligation or security, by colour," &c. taken otherwise than as directed, is declared void.99 Where the bond is given to the sheriff, the statute must be to security strictly pursued; but the statute does not extend to a bond or security given to the plaintiff himself;94 and therefore the taken by plaintiff. 87 3 Bl. Com. 290. 2 Barn. & Ald. 56. 5 Johns. Rep. 186. 88 2 Saund. 61. c. 895 Johns. Rep. 182. 90 2 Saund. 59. b. 60. n. 3. 6 Bac. Abr. 182. 1 Term. Rep. 418. 91 8 Johns. Rep. 98. 92 4 East. 568. 6 Bac. Abr. 182. 93 See 10. Co. 101. b. 8 Johns. Rep. 101. 94 6 Bac. Abr. 182. n. d. Allen. 58. 14 Johns. Rep. 166. 2 Saund. 60. n. 3. undertaking of an attorney given to the plaintiff, for the apearance of a defendant is not void.95 It has likewise been held that the bond must be given to the sheriff himself, as such by his name of office, and not to his deputy.96 If process for When bond arresting the sheriff be delivered to a coroner, then the bond must be to the coroner and by his name of office.97 The condition of the bond, as prescribed in the old statute, was that the prisoner should "appear, at the day and place required in the process." By this was meant that he should put in, and if required, perfect bail above.98 The condition as prescribed in the present act, is in terms, " that the defendant will appear in the action commenced by such writ, by putting in special bail within twenty days," &c. The bond must be conditioned for the appearance of the party, &c., and for no other purpose.99 It must not be for the performance of some other act,100 or for the appearance of the party coupled with the performance of some other act;1 neither must it be single without any condition at all, or with an impossible condition. A bond defective in any of these particulars is void. Or if it has been filled up wholly or in part after it has been executed, it is void. If the bond be void and bail be not put in, in due time, the sheriff may be sued for the escape; and the court in such a case will not relieve him by allowing him afterwards to put in and perfect bail.1 Bond cannot be avoided for trifling informalities.] If the bond be substantially good, it cannot be avoided for any trifling informality or variance of the condition from the writ; as in to coroner. Order to show cause. 6 the description the plea. The statute does not require, that the nature of the action should be inserted in the condition, or even that it should be stated at whose suit the defendant is to answer. Therefore a bond is good, though the condition be to answer the plaintiff generally, without mentioning any plea, or to answer the plaintiff in a plea of debt, without mentioning any sum, or in a plea of trespass for a certain sum, without regarding the ac etiam, or in the action stated in the ac etiam, without saying a plea of trespass and also, &c." So if the action be mistaken, or improperly described, as if trespass on the case upon promises be inserted where the action is trover; or if the bond omit to state at whose suit the defendant is to answer.9 Penalty of bond.] It was formerly the practice to make the penalty of the bond double the sum inserted in the ac etiam;10 but now the penalty of the bond must be “equal to the sum endorsed on the writ." The bail are liable to satisfy the whole debt due to the plaintiff, to the full extent of the penalty of the bond.11 Of discharging defendant on common bail, and of mitigating bail.] If the defendant be held to bail for too large an amount, or the action be not bailable, or if nothing be due, or if the arrest were made before the debt was due, 12 the defendant's course is to obtain an order from a judge requiring the plaintiff to show cause of action, or why the defendant should not be discharged on common bail, or the bail be mitigated. This practice is adopted from the English courts, where it prevailed until rendered unnecessary by a statute 5 Str. 1155. 1 Term. Rep. 240. 7 2 Saund. 66. a. 1 Sell. Pract. 135. 2 Lev. 123. 6 T. R. 702. 1 Archb. 82. 910 Mod. 327. And see 1 Arch. Prac. 82. 1 Dunlap's Prac. 159. 101 Archb. Pract. 81. 11 2 Saund. 61. a. 12 1 Johns. Cases 393. S. C. Coleman, 106. |