69 N.J.L. 129 | N.J. | 1903
The opinion of the court was delivered by
Since the decision in this cause appearing in 39 Vroom 214, the sheriff has been permitted to amend his return on the capias, so that it now reads: “I took the body •of the defendant named in this writ and released him on bail: tlie name of the bail is Joseph. Stein. As additional security to the hail bond I required said Stein to deposit with me the sum of one thousahd dollars."
On the petition of the bail, Joseph Stein, a rule has been • allowed requiring the plaintiff and the sheriff to show cause why the bail should not be allowed to surrender the defendant, or should1 not be discharged, and have the deposit of $1,000 returned to him, without physical surrender of the defendant.
These circumstances show that the plaintiff lost nothing by the failure of the defendant and the bail below to put in and perfect special bail. Her declaration having been regularly filed according to the return then appearing upon the capias (Practice Act, § 103), she could have entered judgment against the defendant at the expiration of sixty days after the.return. Before the time came for entering such judgment the defendant was in the actual custody of -the sheriff at her own suit, and a capias ad satisfaciendum upon such a judgment, lodged with the sheriff, would have afforded her all the redress to which she was legally entitled. The consequences of her failure to exercise her rights in the suit cannot be charged on the defendant or his bail) and the fact that the defendant cannot now be taken in execution is due to no fault of the bail.
We think the case warrants the exercise of the equitable power of the court for the relief of bail, and that a formal surrender through habeas corpus should not be required.
The rule for the discharge of the bail and the return of the deposit should be made absolute, but without costs.