General requisites of the bond-when to be executed. Two or more sureties are, in general, required by the sheriff. A bail bond, however, with but one surety, will be valid.3 As the sheriff is liable upon forfeiture of the bond, he has a right to claim such security as will indemnify him. The bond is, in general, taken in a sum equal to double the amount of the debt or damages sworn to. If there be two or more writs of capias in favor of the same plaintiff, against the same defendant, bail bonds should be taken separately, in each case.1 If the sheriff refuse to accept a sufficient bond, when offered, he is liable to an action on the case for such refusal ;5 but, in order to maintain such an action, it must appear, that the parties who were offered as bail, had sufficient estate or property in the county where the arrrest was made.6 The sheriff may discharge the defendant, upon the bond of sureties who reside out of the county, or have no property in the county. If he take insufficient bail, or if he discharge the defendant without bail at all, so that he have him at the return of the writ, no action lies against him. And so, if the bail be insufficient, or no bail be taken, the sheriff may, upon being ruled to bring in the body, enter special bail during the term, and save himself from amercement.8 The sheriff may, it seems, take a bail bond from a defendant, without arresting him; and the bond, in such case, will be valid, if otherwise in due form and unobjectionable; and it will be valid, even although the sheriff should, after taking, and before assigning the bond, return the writ not found: the arrest not being traversable in an action on the bond.10 2. When bail bond to the sheriff to be executed. The bail bond must be executed, and taken, on or before the day on which the writ is returnable, or it will be void;11 and the bail, in an action against them on a bond, may take advantage of this irregularity, on a plea of non est factum.12 So, if the bond be executed before the condition is filled up, it will be void.13 3. Form of the bail bond. The security must be to the sheriff or coroner, with the addition of his name of office, conditioned for the appearance of the defendant within the time required by law to put in special bail, which is on the first day of the term, or the succeeding day,14 The statute of Ohio,15 although it does not prescribe the form of the bond, yet contemplates that no other instrument, or undertaking, but a bail bond, shall be taken by the officer, to secure the appearance of the defendant. (2) 10 Co. 100. (3) 2 Saund. 61 (5); 2 Met. 492. (4) 2 Ohio Rep. 277–285. (5) 7 Johns. 138, 512. (6) 15 East. 320. (7) 5 Johns. 182. (8) Stat. 653, (27. (9) 1 Str. 444, 643. If courts (10) 20 Eng. C. L. Rep. 378. (11) 1 Ld. Raym. 352. (12) 4 M. & S. 338; see 2 T. R. 569. (14) Stat. 652, §25. (15) Stat. 650, §15; Stat. 655, §36. General requisites of the bond. should depart from the obvious intention of the statute, upon this subject, it would open the door to fraud, extortion and oppression, upon the part of officers, requiring express legislative enactment, similar to the English statute,16 which points out the manner in which bail bonds shall be taken, with the fees of the officers, and declares, that all other obligations, not warranted by the act, shall be void. Whether the courts of this state will sanction any undertaking or instrument, other than what is known and recognized, by statute, as a bail bond, is yet to be decided. Since the passage of the English statute, it has been held by the courts of England, that if the instrument taken by the officer be not by bond, it is void. Thus, a promissory note, given as security to the officer, or an agreement in writing to put in good bail before the return of the writ;17 or an undertaking of that kind by an attorney,18 is void; and an action cannot be maintained by the officer, in either case, on such contract, even although he be obliged to pay the debt himself.19 And where an officer permitted a defendant to continue at large, on a promise to put in good bail, the Court of Common Pleas in England, though the sheriff put in bail for his own indemnity, would not suffer him to seize the defendant, before the time for putting in bail had expired,20 or even permit him to surrender him at the return of the writ,21 and refused, under such circumstances, to set aside an attachment against the sheriff for not returning the writ.22 It has been held, that an action for money paid to the use of the defendant, may be maintained by a sheriff who has paid the debt and costs on attachment against the sheriff, bail above not having been put in, through the misconduct of the defendant, in imposing insufficient bail on the sheriff, the defendant having promised to indemnify the officer, both before and after the payment. But the officer cannot, in such case, recover beyond the debt.23 It has also been held that the bail bond must be to the officer, by his name of office; and a bond to, or an agreement with the deputy;24 or a bond to the sheriff, but not by his name of office,25 is void. The bail bond must be conditioned for the appearance of the defendant. A trifling inaccuracy will not vitiate the bond.26 Thus, if the condition state the place of appearance correctly in substance, though not formally, it will be sufficient.27 So, also, if the bond misdescribe the cause of action mentioned in the writ, or omit any part of it,29 or omit to state at whose suit the defendant is (16) 23 Henry, 6th Chap. 9; which is copied into the New York code, 2 R. S. 236, §59. (17) 1 T. R. 418; 7 T. R. 109; 8 Johns. 98. (18) 4 East 588; 21 Eng. C. L. Rep. 299. (19) 8 East 171. (20) 8 Eng. C. L. Rep. 352. (21) 17 Eng. C. L. Rep. 17. (23) 22 Eng. C. L. Rep. 331. (24) 1 T. R. 418; 4 East 568; 7 T. R. 109. (25) 1 T. R. 422. (26) 2 Ohio Rep. 409. (27) 9 East 55; 1 T. R. 310; See 6 Taunt. 551. 1 Eng. C. L. Rep. 479. Syl. (29) 6 T. R. 702. As to the form of a bail (22) 7 T. R. 109; 17 Eng. C. L. Rep. 17; 2 bond when there is a misnomer, see Sec. XV. 5. n. Barn & Ald. 354. Form of bond-Discharge of defendant without bond. to answer,30 it will not vitiate the bond.31 But if the condition be impossible,32 or if it be conditioned for any thing but the appearance of the defendant;33 or if there be a variance between the bond and writ in the day of appearance ;34 or if the condition be not inserted before the bond is executed, but at another time,35 the bond will be void. FORM OF BAIL BOND TO THE SHERIFF. Know all men by these presents, that we, C. D., E. F., and G. H., are held and bound unto S. S., sheriff of the county of in the sum of [The sum required by the indorsement on the writ,] dollars, to be paid to the said sheriff or assigns; for which payment we do hereby jointly and severally bind ourselves. Sealed with our seals, and dated this day of —, A. D. 9 at The condition of the above obligation is such, that if the above bound C. D., do appear before the Court of Common Pleas, of the county of the court house in said county, on the first day of their next term, or on the succeeding day, to answer to A. B. in a plea of [Here name the action in the writ; and the damages, or debt and damages, as the case may be, thus: Assumpsit, Damages dollars; or thus: Debt, for debt ges dollars,] then this obligation to be void, otherwise virtue in law. dollars, Damain full force and 4. Discharge of the defendant by the sheriff, without a bail bond. The sheriff may, if he will, discharge the defendant without taking a bail bond, or any other security for his appearance; and, if he afterwards retake him before the return of the writ;36 or, if after returning cepi corpus, and before the expiration of the rule to bring in the body, he put in and perfect bail, or render the defendant,37 he is not liable to any action for a false return, or an escape, &c. But, on the other hand, if the sheriff, in such a case, have not the defendant at the return of the writ, that is, if he have him not in actual custody, or do not put in and perfect special bail, or render the defendant in due time, he will then be answerable in an action for an escape ;38 or, if he shall not return bail, and a copy of the bail bond, or if the defendant fail to appear and give special bail, the court, on motion, will rule the sheriff to bring in the body within the term, and he must then either bring in the body, or enter and perfect special bail during such term; and in default thereof, may be Consequences, and liability of officer. amerced in the amount of the debt or demand with costs,38 and the court will not relieve him by allowing him afterwards to put in special bail, or to render the defendant.39. If the sheriff discharge the defendant without a bail bond, &c., and be obliged to pay the plaintiff the amount of his debt, he cannot maintain an action against the defendant for the money so paid.40 The sheriff is bound to discharge a defendant, without a bail bond, &c. upon receiving a written discharge from the plaintiff, or his attorney, be other writs for the body in his hands. unless there 5. Escape and recaption. An escape is either negligent or voluntary; negligent, where the party escapes without the consent of the officer; voluntary, where the officer permits him to go at large. After a voluntary escape, if the party were in custody under a writ of execution, the sheriff can never retake him, and would be liable to an action for false imprisonment, if he did;45 but if he were in custody under mesne process, the sheriff may retake him at any time before, or on the return day of the writ,46 but not after it.47 And where a bail bond is taken on the arrest of a defendant on a capias, under an agreement that it shall be considered only as a security for the forthcoming of the defendant on a subsequent day, unless additional bail be given, and such bail be not given, the sheriff may retake the defendant.48 After a negligent escape, however, the sheriff may, in all cases, retake the party,49 on fresh pursuit, even on Sunday, or the fourth of July, or in any place.50 In the case of arrest on mesne process, all that is required of the sheriff is to bring the body of the defendant into court on the return day of the writ;51 consequently, an action for an escape cannot be brought against him before that time; nor is he liable to an action, or to amercement, if he put in and perfect bail for the defendant, before the expiration of the rule to bring in the body.52 But if the defendant escape at any time thereafter and before execution, whether the escape be voluntary or negligent, the sheriff is liable to an action on the case; in which the plaintiff will recover such damages as he has really sustained.53 If an action be brought for an escape before bail is put in, putting in and perfecting bail afterwards and before trial, provided it be put in and perfected at the (38) Stat. 653, §27. See post sec. XIII, 2, of this Chapter. (49) 1 Saund. 35, b, n. (50) 7 Johns. 145. 155; Mod. 231; 5 T. R. (39) 7 T. R. 109; 1 Taunt, 119; Stat. 653, §27. 25; 2 Ld. Raym. 1023; 5 Co. 93, 5th Resol.; 8 (40) 8 East 171. See ante, p. 156. (41) 1 Esp. 45; 7 Cowen 739. (45) 1 Saund. 35. (46) 2 T. R. 172. 176, 177; 10 Wend. 514. (47) See 4 M. & Sel. 397. (48) 7 Wend. 188. Pick. 137; 2 Salk. 626; Willes 459, 460. (51) 1 Saund. 35, a; 5 Johns. 182. Pr. 149; 7 Johns. 189; 1 Johns. 215; 1 Tidd 253; Consequences of rescue-Lodging defendant in prison, &c. term in which the writ was returnable,54 will be a bar to the action,55 and the only means the plaintiff has of preventing this, is by opposing the justification,56 or moving to set aside the rule of allowance.57 If, after a voluntary escape, the sheriff is obliged to pay the plaintiff the amount of his debt, the sheriff cannot maintain an action against the defendant for the money thus paid.58 If any person obstruct or prevent the sheriff from retaking the defendant, after his escape, the court, upon application and an affidavit of the facts, will grant an attachment for contempt, the same as in all other cases of resistance of the execution of the process of the court;59 and may also punish the offender, on indictment, by fine and imprisonment.60 6. Rescue. If the defendant, after he is arrested, and before he is carried to prison, be rescued from the sheriff, or his deputy; or, without the fault of the officer, by force rescue himself, the sheriff shall be excused from having his body in court at the return of the writ.61 But a rescue after the defendant has been carried to prison, and even where the sheriff is bringing him from the prison to the court by habeas corpus, will not excuse the sheriff; but he is answerable for it, as for an escape. 62 In no case will an escape, owing to the negligence of the officer, justify the return of a rescue. 63 Rescue from civil process can be punished by attachment for contempt as a resistance of process ;64 and, upon indictment, by fine and imprisonment.65 7. Lodging the defendant in prison-prison bounds-insolvent's certificate. After the officer has arrested the defendant, he generally commits him to custody, until he be discharged by law; which, in general, can only be by giving a bail bond. But there is no time limited within which the defendant must be taken to prison, and it would seem to rest in the discretion of the sheriff, whether to imprison him before the return day of the writ or not, it being sufficient that the defendant be forthcoming at the return of the writ. Before permitting the defendant to go at large, upon giving bond for the prison limits, the officer should take the defendant to the jail of the county, and there imprison him, at least for an instant; otherwise the defendant is not entitled to the prison bounds; for it seems it is only those who are imprisoned within the four walls of the jail, that can give a valid bond for the prison bounds.66 |