Boggs v. Chichester

13 N.J.L. 209

• Court: Supreme Court of New Jersey
• Decided: May 15, 1832
• Status: Published

Opinion

Ewing, C. J.

The bail may avail themselves of this objection. Where the ca. sa. is directed to the officer in order to charge and fix the bail, they have an interest in the proceeding. For it is in the nature of notice and they have a right to object to irregularity in it. This principle has been adopted in practice. In the case cited from Cox’s Reports, the bail made the objection.

As to the validity of the objection there can be no doubt, that the ca. sa. should have been four days in the hands of the officer, before the return thereof. This is the settled practice in England, has been recognized as the practice of this court, and is founded on reason and justice. The casein Cox. Rep. is directly in point. The practice act, it is true, has been passed since, and in this particular is silent. We therefore stand upon the practice as settled in Cox. Rep. It would be wrong to fix the bail with the payment of large sums, without some opportunity of protecting themselves; and this too upon little more than two days, and upon a summons taken out during the same term, and served personally. The term may expire before the bail could procure the defendant, if residing at a distance. The ea. sa. must be quashed.

Justice Drake concurs with me.

Pennington enquired, if the defendants ought to pay costs.

By the Court. On set tingaside an irregular proceeding, the party against whom it has been taken, is not obliged to pay costs. When the bail come to be relieved, after a regular summons, they ask a favor, and the statute requires them to pay costs; but here they come to ask a right, to be relieved against an irregular proceeding, and they ought not to pay costs.

Cited in Vanwinkle v. Alling, 2 Harr. 448; Hunt v. Allen, 3 Zab. 622.