Cockran v. Drake

18 N.J.L. 9

• Court: Supreme Court of New Jersey
• Decided: May 15, 1840
• Status: Published

Opinion

The opinion of the Court, by

Hornblower, C. J.

This motion is founded on the idea that in order to fix the bail, a ca. sa. must be lodged with the sheriff of the county in which the defendant was arrested : or, that the plaintiff by laying the venue in a different county from the one in which the arrest was made, has discharged the bail. Neither supposition is well founded. The books cited by the defendant’s counsel, do not sustain him. Tidd pr. 242 and 375; and Bing, on Exeens. 155, in 13 Law Lib. 65, only show, that where the plaintiff declares upon a different cause of action from that which is expressed in the process, or in the affidavit for bail; or where, in the K. B. the plaintiff sues by original writ in one county, and declares in another, the bail is disehargéd. But this latter result was in consequence of a rule of the court of K. B. of Easter T. 2 Geo. II, as appears as well from the books cited by defendant’s counsel, as by 1 Chit, on Pl. 246, 247. That rule has never been recognized in this court, and has been rescinded in England. 3 Chitt. General prae. 453. If however, the want of a ca. sa. to the sheriff of Sussex, was fatal to the plaintiff, it could not be taken advantage of by the bail, on motion. The want cf a ea. sa. is not a mere irregularity; but is a matter of substance, of which, the bail can only take advantage by pleading. Philpot v. Manuel, 5 Dow. and Ryl. 615, in 16 Engl. C. Law R. 244; Dudlow v. Watchorn, 16 East. 39; Thackray v. Harris, 1 B. and Ald. 212; 1 Archb.pr. 290. But it is a sufficient answer to the defendant’s motion in this ease, to say, that the ea. sa. was correctly issued to the sheriff of the county of Essex. In Archb. Prac. 1 vol. 290, it is expressly said that the ea. sa. must be directed to the sheriff of the county where the venue was laid. In Dudlow v. Watchorn, 16 East. 39, to a plea that a writ of ea. sa. had not been duly issued; the plaintiff' replied, a ca. sa. sued out in Middlesex, averring that, that was the county in which the venue had been laid &c. The defendant rejoined that the venue was laid in London, and not in Middlesex; and it was held a good rejoinder, on demurrer. In Bing, on Execns. in note p. 157, 13th Law Lib. 66, it is said, that the ca. sa. should be to the sheriff of the county where the action was laid. The same tiling is repeated in Petersd. on Bail, 357, in 10 Law Lib. 198. The defendant in the original action and his bail, were bound to take notice where the venue was laid; and they should have searched the oflice of the sheriff of that county, if they wished to know whether the plaintiff intended to proceed by execution against the body of the defendant. If the principal had been surrendered to the sheriff of the county of Sussex, and notice thereof given to the plaintiff’s attorney, before this action had been brought, it would have been sufficient. As that was not done, this motion must be denied : but as the surrender has since been made, let this action against the bail, be dismissed, on payment of costs.

Motion denied, but the action against the bail dismissed, on payment of costs