Majority
p. 218Abraham Mitchell versus John Roulstone and Moses B. Stickney. Oct. Term, 1828.
Headnote
On an attachment against the Sheriff for not returning the defendant’s^ body, it appeared that bail had been put in, and had justified, subsequently to the rule for the attachment, but no notice thereof had been given to the plaintifi’s attorney, although he was present at the justification. HELD, that the want of notice was an irregularity, and that the costs incurred subsequently to the rule should be paid by the Sheriff.The certificate of the clerk, that the rule on wliich the attachment is grounded has been entered, must in all cases accompany the affidavit of notice of motion for an attachment against the Sheriff, for not returning the defendant’s body.
Judah moved for an attachment against the sheriff of the city and county of New-York, for contempt, in not bringing in the defendants’ bodies, founding the motion upon an affidavit containing the following statement of facts, viz :
The capias ad respondendum in this cause was returnable at the term of October, 1828. The first week in term had elapsed, and no bail had been put in by the defendants. The plaintiff then ruled the sheriff (on the 20th of October, 1828,) to bring in the defendants’ bodies, and served due notice thereof, according to the practice of the court. At the expiration of the rule, the defendants perfected special bail, (the plaintiff’s attorney attending at the justification,) but gave no notice of the filing of the hail piece, or of the bail having justified. The plaintiff’s attorney demanded of the sheriff, and of the defendants’ attorney, the costs upon the rule, and upon the subsequent proceedings.
Upon this state of facts, Judah, in behalf of the plaintiff, contended, that, as it was incumbent on the defendants, by the 9th rule of this court, to perfect special bail during the first week of term after the return of mesne process, and as the plaintiffs were allowed by the same rule to proceed against the sheriff, or upon the bail-bond, in default of bail being put in and perfected within the period stated; and as in this case no bail was offered until long after the time for putting in bail had expired, and after the sheriff bad been ruled to return the defendants’ bodies,bail could not now be tender-
p. 219contended, that the attendance of the plaintiff’s attorney before the judge at the
without leave obtained upon a special application to the court. [1 Arch. Pr. 98.] That it was well settled, that on such an application, the court would not grant leave to file bail for the defendants without payment of costs. That permission to put in bail at all in this stage of the cause, was only to relieve the sheriff, and to prevent an attachment against him, and this was granted only on payment of costs. That the entry of the rule against the sheriff, is the foundation of a new cause, to which the original action bears the same relation that it does to a suit upon, the bail bond. The sheriff cannot be excused from the contempt committed, but by the favour of the court. With regard to justification, it signifies nothing, where the sheriff has been ruled. [.Llofft, 438.] In this case, bail was put in after the time allowed by the rales of court, and consequently was irregular. That even if it were regular, no proper notice of bail had been served, the attendance of the plaintiff’s attorney before the judge, at the justification of the bail, being no waiver of-the right of notice. The service of notice was material, since, without it the plaintiff was deprived of the opportunity of examining the bail piece, or of the affidavits of justification. That the plaintiff may proceed against the sheriff even though he has opposed the bail, or consented to them, or has been informed of their justifying. [2 Bos. and Pul. 341.] That the sheriff is liable to an attachment, notwithstanding the bail have justified, provided the order for their allowance is not served on the plaintiff’s attorney. [4 T. R. 493.] That justification is waived, if notice thereof be not served. [2 Bos. and Pul. 342.]
That the court will interfere from motives of judicial policy in enforcing the right to bail, and even if the motion for an attachment be denied, they will certainly order the sheriff to pay the costs of the rule to bring in the defendants’ bodies, and of the subsequent proceedings, as they are not properly taxable in the original suit. [1 Cow. R- 214. 1 Bos. and Pul. 325. 3 Bos. and Pul. 603. 1 Cow. R. 54. 1 Arch. P. 80.]
Kinney, contra, in behalf of the defendants,
p. 220justification of the bail, was a waiver of the right to notice, and that the bail having justified, the motion ought to be denied. [1 Arch. P. 97. 1 Dunl. P. 198.]
The want of service of notice of hail was irregular, and not cured by the attendance of the plaintiff’s attorney at the justification. And with regard to costs, it was the duty of ■the sheriff to pay such costs as were incurred by his own neglect in not bringing in the defendants’ bodies pursuant to the exigency of the rule entered against him. The costs which have accrued subsequent to the entry of the rule are taxable as against the sheriff, and not in the original suit. The motion for an attachment must therefore be granted, unless all the costs which have accrued subsequent to the entry of the rule against the sheriff are paid within four day s.[1]
(a) (a) At the argument, the court suggested, that on a motion for an attachment it was proper, that the clerk’s certificate of the entry of the rules on which the attachment is grounded, should accompany the affidavits of service of notice of the motion, and that hereafter such certificate would in all cases be required. This is now the practice of the court.