Bobyshall v. Oppenheimer

The ground laid for the rule to enter an exoner-etur on the bail piece is of the first impression in this court, and has certainly never, to my recollection, received its sanction. In the cases cited from Peter’s Reports [supra] the person of the defendant having been discharged under an insolvent law of a state where the contract was made, and no new contract having been entered into, no objection existed why the defendant should not be permitted to appear on common bail, that being a matter resting in the discretion of the court. But after the assignment of the bail bond, by which the appearance bail became bound to the plaintiff that the defendant should appear to the suit, a subsequent discharge of the defendant under the insolvent law cannot affect the plaintiff’s rights against the bail. If the insolvent law were to declare, in so many words, that such should be the effect of a discharge under it, I should question very seriously its validity; and clearly the court will not give it that effect by construction. The English practice I believe is, to consider the bail as waived, if the plaintiff declare against the defendant before the return of the writ, un-Tess the declaration be filed de bene esse. But I understand that the practice of this state, prior to the institution of the courts of the United States, has been different, and it would be of mischievous consequence were we now to adopt a different rule.

As to the second rule. The undertaking of the bail to the marshal is, that the defendant shall appear at a certain day, which can be effected only by putting in and perfecting special bail, if special bail be required. If the bail, being excepted to, do not justify within the time limited by the rules of the court, they are out of court, and the bail bond is, strictly speaking, forfeited. After this the plaintiff has his choice of two remedies; either to accept an assignment of the bail bond, by which he discharges the marshal; or to rule that officer to bring in the body of the defendant, which if he fail to do, he renders himself liable to the plaintiff. If the former course is adopted, and a suit be brought upon the bail bond, the court, according to the English practice, will nevertheless stay proceedings on the bail bond, provided the plaintiff has not lost a trial, upon the defendant putting in and perfecting bail, paying the costs of the suit, receiving a declaration in the original action, pleading issuably, and taking short notice of trial, so that the cause may be tried at the same term. I understand the practice of this state to be the same. In this case, special bail having been put in, but not perfected, in consequence of the bail refusing to justify when excepted to, the bail bond is forfeited; in like manner as it would have been, if bail above had not been put in at all. The defendant has offered to confess judgment, which fully removes the objection that the plaintiff has been subjected to delay by the loss of a trial, as this is the first term at which a trial could have been had. He must, nevertheless, go further, and put in sufficient bail to Entitle him to a stay of the proceedings on the bail bond. But at all events, the rule as it now stands, to dismiss the writ with costs, cannot be supported.

Both rules therefore must be discharged. 1 Tidd, Pr. 153, 143; 1 Bac. Abr. 339, 346; 7 Cowp. 71; 4 Bin. 344.