
    LITTLEBOY v. BLANKMAN.
    July 2, 1836.
    
      Rule c.i the sheriff io brin? in the body.
    
    Where upon it trip,as a,l r, s/ionth ndum the defendant wives bail to the sheriff" and then put- m -pv ird b,itl. which i- exccpo-d to by the plaintiff uitlfin the time specified by the rub's of court, end the -pretal hail does not justify, nor dues the defendant put in new special 1ml. the court v ill rule the shot iff to bring- in tile body :
    
      áfM.ess the plaintiff shall omit to apply for such rule in a reasonable time after the non justification of the bail, in which case the court will refuse such rule.
    Such application is in reasonable time if made before the period has oxpiied within which the exception to the bail may be made by the terms of the rules of court.
    
      yAeCAPIAS ad respondendum was issued in this case on the 7th of March 1836, returnable on (he first Monday of April, which was the 4th. On the -13th. of April special bail was put in, to which the plaintiff excepted on the 27th of the same month. Two days after-wards,notice was given that the bail would justify on the next day at an hour named. The bail failed to appear at the time appointed, and at the instance of the defendant, the commissioner of bail granted a postponement of the justification till the 2d of May following. The bail again made default, and no application by the sheriff was made to add new bail. On the 21st of May the rule on the sheriff to bring in the body was obtained, returnable on the next Saturday, which was the 28th.
    The case was argued by
    
      Newcomb, for plaintiff.
    
      If. J. Williams, for the sheriff.
   The opinion of the Court was delivered by

Stroud, J.

The sheriff resists this rule on the ground that the plaintiff has been guilty of laches in not asking for this rule at an earlier day.

On the arrest the sheriff becomes responsible for the appearance of the defendant. If proper bail be offered it is his duty to lake it, and his return with us in such case accords with the fact, and is usually stated in brief C. C., and B. B.\ if the defendant cannot procure bail he is committed to prison, and the return is C. C., or C, C. & C. (cepi corpus ei committilur). As tire sheriff is by law the keeper of the prison, the defendant is deemed to be in his custody when there, and in England the return is that he has him in custody.

When a bail bond is taken, the condition is that the defendant shall appear on the return day of the trial to answer the complaint of the plaintiff. This appearance can be effected only by putting in and perfecting special bail; and this, in strictness, should be clone, at furthest, on the return day. By a rule of court, however, eight days are allowed for this purpose beyond the return day. This is an indulgence to the sheriff., designed for his convenience and benefit; and it is his interest as well as his duty to see that good bail be put in within that period.

But although, after having taken a bail bond, the sheriff is bound for the defendant’s appearance by special bail, and it is therefore ordinarily in such case in the power of the plaintiff, by proper diligence, to compel the putting in of such bail, yet, by neglect on his part, he may become incapacitated from taking advantage of the sheriff’s omission to comply with his duty in this particular. Immediately after the expiration of the eight clays allowed by the rule of court to put in special bail, if it has not been put in, the plaintiff, unless the bail bond has, at Ids request, been assigned to him, may obtain a rule to bring in the body. If without good cause he delay his application for this rule beyond a reasonable time from this period, the sheriff’s liability to be called upon in this manner will be regarded as at an end. We have no reported decisions of our own courts to this effeet, but such is the established law of England, (1 Taunt. 111 ; 9 East 467; 3 Bos. & Pul 151 ; 9 Eng. C. L. Rep. 435) and is no doubt the law here. What limit is to be affixed to the expression reasonable time as applied to this subject, has not been ascertained with precision in England, where the bias of the courts is to exact great vigilance of the plaintiff. With us it must depend mainly upon the rale of court regulating the entry of special bail, viewed in connexion with our practice in reference to proceedings against the sheriff for particular defaults, either of himself or of the bail below. To the peculiar circumstance^, of cadi case some cotibideutlion also must necessarily be given.

The i nle of court adopted November 1, 1835, so far as its aid maybe invoked in the ptestiii case, ⅛ m these wouls : “ the. defendant in actions commenced by capten shall have eight days hom the return day of the writ inclusively theieof to enter special hail ; and if bail be not then entered (he bail bond may be sued. If no special bail shall be entered within the said ei«ht days, but shall be entered before the commencement of the succeeding leim, the plaintiff shall, within the iif't four day s of that term, make his exception to the sufficiency of the bail, or it shall stand.”

Thete is a defect in our puvcrice not only on the subject of bail, but in tegard to the pleadings, in not icijuiring notice, to be given by a party of particular acts done by him from time to time in the progress of a cause. The opposite party is supposed to consult the dockets of a prothonotniy, and títere ascertain the steps taken by bis adversary. Thus in the rule of court jttsl (¡noted, if bail be not put in within eight days, the defendant may, at any time after and intervening the end of that term, without notice to the plaintiff, repair to the office and entei special bail ; and unless the plaint til' by actual inspection of the docket becomes acquainted with this pioceedtug before the expiration of four days of the succeeding tenn, it will be too late to except : the bail, though insolvent, will stand, and the responsibility of the sheriff cease. It is not to be expected, therefore, that counsel ia general will search for bail until near the close of the time permitted for exception ; and, consequently, the sheriff has no right to complain of the plain tiff’s delay until it. transcend tiiis limit.

The peculimity of this case is, that the vigilance of the plaintiff’s counsel induced an examination of the dockets much earlier than could have been exacted of him, and a mote prompt, exception to bail followed than the rule required ; and bail not having justified, the right to enter it afterwards without leave of the court no longer existed ; and consequently, after the 2d of May, the sheriff was, in a great measure, at the mercy of the plaintiff. JSTineteen days only, however, were suffered to elapse before the rule to bring in the body was obtained ; -and as the period had not expired within which the exception to the bail, if it had been postponed, as it might have been at the election of the plaintiff’s counsel, would have been in time by the terms of the rule of court, to hold the plaintiff in laches and discharge the sheriff would be a severer requisition than this particular case, or the convenience and interest of the sheriff himself in general demands.

The rule to bring in the body is therefore made absolute.  