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service.

requiring an affidavit of the debt or cause of action to be made before the issuing of process. A copy of the order Copy and must be served on the plaintiff's attorney, and the original, at the same time, shown him. If at the time appointed in the order, neither the plaintiff nor any one in his behalf appears, the judge, on affidavit of the due service of the summons, will grant his order to discharge the defendant; if it be before the return day of the writ, on his endorsing his appearance on the process, and if after the return day, on his filing common bail. If the plaintiff appear and show no sufficient cause of action, a similar order will be granted: or if in the opinion of the judge the bail ought to be mitigated, he will grant an order reducing the amount, according to the circumstances of the case.18

cation op

davits.

To oppose the application for discharge, the plaintiff may How appli produce the affidavit of himself or of a third person: the posed. affidavit must be positive as to the debt or as to the deponent's belief;1 or it must show a probable cause of action.15 The Counter affi judge may in his discretion receive counter affidavits on the part of the defendant; but where the plaintiff swears positively to the debt, it is improper to receive them.16 If the judge refuse the order, the defendant may apply to the court in term for his discharge, on the usual notice, accompanied with affidavits; and this being an original application, the plaintiff' may offer supplementary or counter affidavits in opposition to the motion. After filing bail and pleading to the action, it is too late to apply for the defendant's discharge.1

18

on obtaining

If the judge grant the order where the application is made Proceedings before the return of the process, a copy of the order should be discharge. served on the plaintiff's attorney, and the original left with the

13 See 1 Dunlap's Pract. 167.

142 Johns. Rep. 100.

154 Johns. Rep. 306. 162 Johns. Rep. 100.

174 Johns. Rep. 307. 5 Johns.

Rep. 363.

181 Johns. Cases, 363.

Where bail mitigated,

justify im

sheriff as his authority for accepting the defendant's appearance on the writ and delivering up the bail bond; or if the defendant be in custody, for discharging him on his endorsing his appearance. Where the order is granted after the return of the writ, the defendant's attorney having served a copy on the opposite attorney, retains the original and puts in bail accordingly, unless the defendant be in custody; and in that case, after common bail has been filed, the original may be served on the sheriff, accompanied with a certificate of the clerk that bail had been filed pursuant to the order; on such service being duly made, the sheriff will discharge the defendant. Or the defendant, instead of an order for a discharge, may obtain the judge's allowance of a supersedeas, (having adapted the order to show cause to that object,) and serve the supersedeas upon the sheriff; and if it may be a question whether the sheriff is absolutely bound to obey the judge's order and discharge the defeneant, there can be no doubt as to the propriety of proceeding by writ of supersedeas, which the sheriff cannot hesitate to comply with.19

Where the bail is mitigated, and the defendant is in custody, they must they must justify without waiting for an exception, before he mediately. will be entitled to his discharge.20 In such case, the most correct course would seem to be, to obtain a supersedeas; and there does not appear to be any objection to the defendant's combining in one notice that A B and C D had become bail, that they would justify at a certain time and place, and that application would at the same time be made for a supersedeas. This notice may be served with the order directing the mitigation of bail.

Persons privileged.

In the same manner, persons privileged from arrest, will be discharged, either on filing common bail, or in some cases

19 1 Dunlap's Prac. 168.

20 1 Arch. Prac. 118.

21

conditionally. Who are privileged from arrest and the rules applicable to such cases, will be seen hereafter.22

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Surrender of bail.] The defendant having given a bail bond could not formerly have discharged his bail to the sheriff, by surrendering himself, before the return of the writ; for it was considered as a settled point, that nothing could be a performance of the condition of the bail bond, but putting in and perfecting bail above; though it had been held otherwsie.24 But now, by statute, "whenever a bail bond shall be taken on the arrest of a defendant, the bail therein may surrender their principal, or he may surrender himself in exoneration of his bail, in the same manner, except as herein after modified, before the same officers and with the like effect as herein before provided with respect to special bail. "25 The proceedings being thus similar to those in case of the surrender by special bail, we will hereafter, for convenience, treat of both subjects together.26

SECTION IV.

OF THE RETURN OF THE WRIT BY THE SHERIFF AND HIS DUTY

THEREON.

bound to exe

Every sheriff and other proper officer to whom any process sheriff is delivered, is bound to execute the same according to the cute process command thereof, and to make due return of his proceedings turn.

and make re

21

I Caines' Rep. 116.

383. 6 Term. Rep. 753. 7 Term.

23 Vide post Vol. 2. Part. 3. of Rep. 118. 1 Bos. & Pul. 325. et

privilege from arrest.

23 Burr. Rep. 2683. 20 Johns.

Rep. 164.

24 2 Saund. 61. c. 1 East. Rep.

vide 1 Dunlap 160.

25 R. St. P. 3. Ch. 6. T. 6. s. 29. Vol. 2. p. 382.

26 See post Vol. 2.

Office in

New York.

Albany.

Utica.

27

thereon; which return must be signed by him. And for any violation of his duty in this respect, he is liable to an action at the suit of any party aggrieved for the damages which he may have sustained.28

Writ, where returned.] The writ is returned by the proper officer, to the office of one of the clerks of the court. Το which office the writ is to be returned depends not upon the place to which the writ is made returnable, but upon the county into which it may have been issued.

It is provided by statute, that "all process issued out of the supreme court, except attachments and writs of habeas corpus, shall be returned by the several sheriffs, coroners and other officers, to whom the same may have been delivered as follows:

1. "By the sheriffs and other officers of the several counties composing the first senate district, and of the several counties composing the second senate district, except the county of Delaware, to the office of the clerk of the supreme court in the city of New York:

2. "By the sheriff's and other officers of the county of Delaware, and of the several counties composing the third senate district, and of the several counties composing the fourth senate district, except the county of St. Lawrence, to the office of the clerk of the said court in the city of Albany:

3. "By the sheriffs and other officers of the county of St. Lawrence and of the several counties composing the fifth, sixth, seventh and eighth senate districts, to the office of the clerk of the said court in the town of Utica."29

And by the next section, "no return of any such process made to any other office than that required in the last section, shall excuse any sheriff or other officer from the liabilities, penalties, fines or proceedings, prescribed by law or by the rules

27 R. St. P. 3. Ch. 7. T. 6. s. 77. Vol. 2. p. 440.

29 R. St. P. 3. Ch. 7. T. 6. s. 78. Vol. 2. p. 440.

and practice of the supreme court, for a neglect to make a return according to law."30

gua.

Since the adoption of the revised statutes, an additional Canandaiclerk's office has been established in the village of Canandaigua, in the county of Ontario; and by the fifth section of the act, it is provided that after the first day of September, 1829, "the sheriffs and coroners of the several counties of Chautauque, Cattaraugus, Erie, Niagara, Orleans, Genesee, Allegany, Steuben, Livingston, Monroe, Ontario, Wayne, Yates, Seneca, and Cayuga, shall return all process issuing out of the supreme court, except attachments and writs of habeas corpus, to the office of the clerk of the said court in the village of Canandaigua, and shall return all attachments and writs of habeas corpus, at the times and in the manner now prescribed by law.' The return of process to a wrong office is not an irregularity for which the proceedings will be set aside.32

9931

Sheriff's return.] When the sheriff returns the writ it is his duty to endorse thereon, a statement, called his return, of his proceedings thereon. The return must be signed by him.33 If he has arrested the defendant, and he is at large, either on a bail bond or otherwise, his return is cepi corpus. If he has him in custody, he returns cepi corpus in custodia. If the defendant be not in his bailwick, or he has not been able to arrest him, his return is non est inventus. Or he may return mortuus, that he is dead, or a rescue, that he had been rescued after the arrest.34 It seems that the English return of lan- Return of guidus has no application in this state. In England the applicable king's bench and common pleas have their respective prisons : the marshalsea belongs to the former, the fleet to the latter; and sometimes, when the defendant is sick in a remote part of the kingdom, the sheriff, instead of committing him to one of

languidus in

here.

30 Ib. s. 79.

31 Laws 1829. Ch. 42. p. 321 Wendell. Rep. 288.

105.

33 R. St. P. 3. Ch. 7. T. 6. s. 77. Vol. 2. p. 440.

34 6 Bac. Abr. 180. Com. Dig. Return D.

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