76 Me. 262 | Me. | 1884
There are two objections to the maintenance of this process against the defendants as bail for Moses Call, in the suit originally brought by the plaintiff’s testator against him,— either of which we think must be regarded as fatal.
I. It is incumbent upon those who would avail themselves of a statute remedy to make it appear that the requirements of the statute have been strictly observed in all essential particulars. Chapter 85, of the Eevised Statutes of 1871, consists of regulations for the taking of bail in civil actions and for the subsequent proceedings thereon. It is under and by virtue of its provisions that "the original creditor may have a writ of scire facias in his own name, from the same court against the bail.” This process supersedes and precludes any other remedy upon the bail bond given to the officer making the arrest. Hewins v. Currier, 62 Maine, 236.
But to entitle the original creditor to maintain it, we think it should be made to appear that the mandate in § 1, that" the bond shall be returned with the writ, and the clerk shall note on the writ that a bail bond is so filed,” has been performed. Not only does the report fail to show that these requirements of the statute
II. The plaintiff took judgment for a sum as debt or damage, exceeding by nearly two hundred dollars the ad damnum in her writ. Her vigilant and persistent counsel elaborately urges that this should not be regarded as operative to discharge the bail,— that it does not affect the validity of the judgment, which is good until reversed on error, and not reversible for this cause under our laws, because capable of being cured by an amendment,— that the bail have not been harmed by the error, and cannot be until the final entry of judgment upon the scire facias, — and finally he claims that " if the court should be of the opinion that the bail would be discharged, if the judgment should remain as it now is, the error can be cured by entering a remittitur for the amount of damages which is in excess of the ad damnumand thereupon he asks the court to delay the decision, or discharge the report under a provision therein contained, authorizing either party to ask an amendment and the law court to allow the same, or discharge the report and order the case to stand for trial in the court below.
But we think it be must regarded as res adjudicata in this State, that an amendment increasing the ad damnum will discharge the bail taken on mesne process; Langley v. Adams, 40 Maine, 125 ; that it was rightly held in Morse v. Sleeper, 58 Maine 331, that an amendment increasing the ad damnum dissolves an attachment,
It is questionable moreover, whether an amendment, if allowed, could have the effect to revive the liability of bail once discharged in this way. The English system of taking bail is so different from ours, that their decisions cannot well be applied to cases arising under our statutes. It was well said by Shaw, C. J., in Crane v. Keating, 13 Pick. 342, that "the whole subject of the giving and taking of bail in civil actions is founded on statute, limited, regulated, and controlled by it; that a bail bond partakes very little of the nature of a contract between the parties in whose names it is taken, but is rather a legad proceeding in the course of justice, the effect of which is regulated by statute”; and we think it best that all suitors who have occasion to rely on such securities should understand that a careful observance of the statute requirements, and an avoidance' of dangerous irregularities in the prosecution of their suits are requisite to make them available.
The view which we have taken of these two points, renders it unnecessary to examine the other matters relied on in defence.
Judgment for defendants, and for their costs.