Majority
p. 598Patterson and others vs. Parker.
Headnote
A copias ad respondendem. in a plea of trespass generally, without indicating the character of the trespass, will not authorize the' sheriff to hold the defendant to hail. *Where a suit was discontinued before a justice on a plea of title being interposed accompanied by a bond, pursuant to the statute, and the plaintiff sued out a capias in the common pleas within the time limited for that pupose ; held, not a defence to an action on the bond, that the copias • contained no ac etiam or other clause specifying the ground of action, but was in trespass generally.
A return endorsed upon a copias ad respondendum, thus—“ Non est, C. P. Sheriff.” &c.—is good; and this, though there be more than one defendant.
The delivery of a copias in the common pleas to a sheriff, with a bona fide intent • of having it served, is a sufficient commencement of a suit to answer the requirement of a bond given before a justice on interposing a plea of title ; and, whether the copias be served or not, the defendant must appear and put in special bail within the time limited, or the bond maybe prosecuted.
The neglect of the sheriff in not serving the copias, however gross, will be no defence to an action on the bond, unless it be shown that his conduct was influenced by the plaintiff.
In debt on such bond, the plaintiff must assign the specific breaches pursuant to 2 R. S. 378, § 5, 6, and have his damages assessed accordingly.
Otherwise, in debt on a recognizance to the people, taken in a similar case previous to the revised statues.
Error to the mayor’s court of the city of Buffalo. Parker sued Patterson and others in the court below, and declared in debt on bond, dated May 25th, 1839, in the penal sum of one hundred dollars. The bond, after reciting that the plaintiff had brought an action before a justice against the defen
p. 599
dants, Patterson & Ross, in which they had pleaded that the title to land would come in question, was conditioned that if the plaintiff should commence a suit in the Erie C. P. within thirty days, for the same cause of action, then, if Patterson and Ross should appear and put in special bail in that court within twenty days after the return of process in that suit, the bond should be void. The plaintiff set out the condition of the bond in the declaration and assigned breaches, in which he averred the issuing of a copias tested the first Monday of June, 1839, returnable on the first Monday of October following, which was delivered to the sheriff on the 24th of June and was afterwards returned; and that Patterson and Ross did not appear and put in special bail. The plaintiff then stated his damages specially. The defendants pleaded non est factum, and gave notice of special matter. On the trial, the plaintiff proved the execution of the bond, and then" rested, claiming to recover $100, the penalty of the bond. The defendants objected that the plaintiff must prove and have his damages assessed under the breaches assigned in the declaration. The recorder decided that under the pleadings, the plaintiff was entitled to a verdict for the penalty of the bond as damages, and that the special averment of damages in the declaration might be rejected as surplusage. The defendants excepted.
The defendants under their notice gave in evidence the copias issued for the purpose of commencing an action in the C. P., which was tested and made returnable as set forth in the declaration, and was returned endorsed thus—11 Non est. C; P. Person, sheriff, by L. Brown U. Sheriff.” By the copias the defendants P. and R. were to answer the plaintiff in a plea of trespass-, to his damage, &c. Nothing further was done by the plaintiff by way of bringing a suit in the C. P. than the issuing and return of this copias. The defendants objected, 1. That the return to the copias was not sufficient; 2. That it was not such a writ as required special bail; and 3. That what was done did not amount to the commencement of a suit within the
p. 600
meaning of the statute and the condition of the bond. Overruled, and exception taken. The defendants offered to prove that Patterson and Ross, from the time of issuing until after the return of the copias, were householders with families, residing and well known in Hamburgh, Erie county. The recorder rejected the evidence on the ground that this, in connection with the other facts proved, would not be sufficient to go to the jury on the question of good faith in commencing a suit, unless the defendants offered in addition to show collusion between the plaintiff and the sheriff. The defendant excepted. The recorder then instructed the jury to find a verdict for the plaintiff for the penalty of the bond, which they did. The entry on the judgment record was, that the jury found the issue for the plaintiff and assessed his damages for the detention of the debt to six' cents. Judgment followed, that the plaintiff recover his said debt, and also $39,38 for his damages, as well for the detention of the debt as for his costs; which said damages, costs and charges amount to $139,38. The defendants now bring error.
W. H. Green, for the plaintiffs in error.
D. Tillinghast, for the defendant in error.
By the Court,
The copias issued in the common pleas required the defendants to answer in a plea of trespass generally, without saying whether it was for a trespass on land, or for taking personal property. The defendants could not, therefore, have been held to bail by force of the process. (2 R. S. § 6, 7.) Still, the copias was sufficient for the commencement of an action, and the defendants were obliged by the bond to appear and but in special bail. The process was well enough in point of form. (Harris v. Underwood, 10 Wend. 668 .)
The sheriff’s return of non est, although very brief, and also bad grammar where there are two defendants, is in the usual form, and the objection to it was properly overruled.
Whether the mere issuing of a copias which is not serv
p. 601
ed, without following it up by an alias and pluries writ, is a sufficient commencement of a suit within the meaning of this statute, was left undecided in Brown v. Van Duzer, ( 11 John. 472 ;) and seems yet to be an open question. "We think it enough that a copias is delivered to the sheriff with the bona fide intention of having it served. To hold that the plaintiff must do more, and procure the actual service of the process, would be to put it in the power of the defendant to defeat the plaintiff’s remedy on the bond. The suit must be commenced in the court of common pleas of the county; (2 R. S. 236, 7, § 59, 60;) and by removing from the county, or remaining out of it if the defendant already lived in another, the service of process might be effectually prevented. It is well settled that suing out process and delivering it to the proper officer to be served, is, for most purposes, to be deemed the commencement of the suit; and we think it sufficient within this statute. No great inconvenience can follow from this doctrine. The copias will in most cases be served. But if the defendant hears nothing on the subject, he can easily enquire at the sheriff’s office at the end of the thirty days within which time the process must be issued; or call at the proper time at the county clerk's office and learn whether a copias has been returned. He has twenty days after the return of the process to appear and put in special bail.
It was not enough to show the process might and should have been served, without going further and showing facts from which it could be reasonably inferred that there was a want of good faith on the part of the plaintiff—that he did, said or omitted something which was calculated to prevent the service of the writ. (Brown v. Van Duzer, 11 John. 472 .) If the plaintiff is not in fault, and the defendants suffer in consequence of the culpable neglect of the sheriff, they must take their remedy against him.
Under the act of 1813, the defendant, on pleading title before the justice, was to enter into a recognizance in the sum of fifty dollars, conditioned to appear and put in bail in the common pleas, if a suit should be commenced there; and when the
p. 602
jurisdiction of justices’ courts was extended in 1824, the penalty of the recognizance was increased to one hundred dollars. (1 R. S. 390, § 7; Stat. 1824, p. 283, § 9.) Under these statutes it was held, that in a suit on the recognizance the plaintiff recovered the penalty without an assessment of damages. (Brown v. Van Duzer, 11 John. 472 ; Harris v. Underwood, 10 Wend. 668 .) Under the present statute the defendant is to give a bond, instead of a recognizance, conditioned to appear and put in bail in the C. P. (2 R. S. 237, § 60.) On a recognizance to the •people, it is not necessary to allege or prove any damages—the judgment is absolute for the penalty. (Id. p. 485, § 29.) But when the action is on a bond, “for the breach of any condition other than for the payment of money,” the statute is imperative that the plaintiff “shall assign the specific breaches for which the action is brought,-” and on the trial, if the jury find the assignment of breaches true and that the plaintiff should recover damages therefor, “ they shall assess such damages, and shall specify the amount thereof in their verdict, in addition to their finding upon any other question of fact submitted to them.” (Id. p. 378, § 5, 6.) This language is too plain and explicit to admit of two constructions. There should have been an assessment of .the plaintiff’s damages under .the breaches assigned in the declaration. (See Reed v. Drake, 7 Wend. 345 ; Barnard v. Darling, 11 Wend. 27 .) The recorder was mistaken in following the decisions under the former statutes, and there must be a new trial.
Judgment reversed.
Cases cited
- Harris v. Underwood 10 Wend. 668 p. 600, p. 602
- Reed v. Drake 7 Wend. 345 p. 602