Jaques v. Hemphill , 3 Del. 503 ( 1842 )

FOREIGN attachment case to November term, 1842. Attachment levied. Nov. 15, 1842, Wm. Hemphill Jones appeared in the office of the prothonotary and entered special bail, and dissolved the attachment according to Dig. 47. The prothonotary took his justification without the presence of, or notice to, the attaching creditor.

Mr. Wales, for the attachment creditor, now moved for judgment, treating this entry of special bail as a nullity, because it was taken in vacation without notice. The court refused that motion, on the ground that judgment could not be given whilst the entry of bail remained on the record.

He then filed an affidavit of the want of notice of the justification of bail, and moved to vacate the entry as illegal.

Gray, for defendant, opposed the motion.

The act of assembly (Dig. 46,) authorizes the defendant in an attachment, or any sufficient person for him, at any time before judgment entered, to put in special bail to the plaintiff's action and all other actions of his creditors to the amount of the goods attached, and this dissolves the attachment. The Const. Art. 6, sec. 23, declares that the prothonotary of the Superior Court may issue process, take recognizances of bail, and enter judgments according to law, and the practice of the court. And the practice is to take special bail in vacation without notice, if the bail will justify. The party if he had notice could only have required the bail to justify, and this was done. If he had been present he must have accepted the bail, or excepted to him as insufficient. If the latter, the bail would be required to justify. He now has all the benefits of being present.

Wales. — The plaintiff in the attachment had the right to be present and show wherein the bail was insufficient, even though he would justify. Neither is the prothonotary the proper officer to judge of contested cases of bail; it must be before the court in term, or a judge in vacation.

Gray. — Those are cases of rules to show cause why the defendant should not be discharged on filing common bail; or motions to reduce the amount of bail, under Digest, 61.

The prothonotary states that it has been the uniform practice in his office to take special bail in these cases in vacation, and without notice where the bail justifies. In cases of appearance bail, by the practice of the court, the defendant has six weeks after the term to file special bail, and this is always done before the prothonotary, who takes the justification without notice.

The Court. —: The constitution gives the prothonotary power to take bail in these cases in vacation, and such is the practice of the court. This application is made to us to vacate the bail, on the ground that it was taken without notice to the plaintiff in the attachment; but there is no objection taken now to the sufficiency of the bail. The only object of giving notice is to give the party an opportunity of excepting to the bail. We think notice should be given in case of bail taken in vacation, but such has not been the practice.

In the present case we refuse the motion, but would now allow the plaintiff to except to this bail, and would require additional bail if necessary.

Regula Generalis. No. 43. In all cases of taking special bail, by the prothonotary, in vacation, reasonable notice of justification shall be given to the opposite party, or his attorney.