Jourden v. Hawkins — 17 Johns. 35

Majority

p. 39

Jourden against Hawkins.

Headnote

Where a sheriff had returned cepi corpus to a capias ad resp., and the deputy sheriff who served the writ became special bail, of which notice was sent by mail, but not received by the plaintifPs altor-ney, who, eighteen months af-terwards, ruled the sheriff to bring in the body, and on affidavit of service,^, moved for an attachment, the deputy and his sureties having, in the mean time, become insolvent, the court refused to grant an attachment, considering it unjust ancf unreasonable that the sheriff should be liable to an attachment, after the plaintiff had lain by for so long a time.

MOTION for an attachment against James Campbell, late sheriff of the county of Herkimer, for not bringing in the body of the defendant, who was arrested on a capias ad resp., returnable in January term, 1818, and which had been returned with an endorsement thereon by the sheriff “ cepi corpus.” It appeared that the capias has been delivered to the deputy sheriff, who, on the 20th of March, 1818, put in special bail for the defendant, to wit, himself and John Doe; and the affidavit of the deputy stated, that on the 2d of April he put a written notice of the special hail being filed ⅞ to the post-office, directed to the plaintiff’s attorney. Oil the 16th of June, 1819, the plaintiff’s attorney entered a rule for the sheriff to bring in the body of the defendant, &c.; and on an affidavit of the service of that rule, and that no notice of bail had been received, he now moved for the attachment against the late sheriff. It appeared, from the affidavits read, that the defendant was insolvent when he was arrested on the capias, and continued to be so, and that he had since absconded. The deputy sheriff and his sureties had also become insolvent.

In the case of the King v. Surry, (7 Term. Rep. 452.) where the plaintiff, after the return of cepi corpus to a writ, delayed ten months before he ruled the sheriff to bring in the body of the defendant, and both the defendant and his bail had, in the mean time, become insolvent, the court of K. B. set aside an attachment which had been issued against the sheriff. The Court of C. B,, in the case of Rex v. P erring, (3 Bos. & Pull. 151.) held the sheriff discharged under similar circumstances. Here the plaintiff has lain by eighteen months, after the return of the writ, before ruling the sheriff, and after the bail and the deputy’s sureties have become insolvent. We adopt the rule of the English courts, in this respect, as just and reasonable, and, therefore, refuse the attachment.

Motion denied,^[1]

(a) (a) Vide People v. Stevens, 9 Johns. Rep. 72 . See also Seymour v. Curtis, 1 Wendell, 105. 2 Ibid. 253. The People v. Shoemaker, and 2 Cowen, 477. n. (a).