People v. Tefft , 3 Cow. 340 ( 1824 )

Curia.

The usual practice is, when the defendant is arrested upon the attachment, either to take his recognizance, or the recognizance of him and his bail, conditioned that he shall appear at the return day, &c. There is, in general, no need of committing him to close confinement. But the plaintiffs, or rather the party who prosecutes in their name, may exact not only the defendant’s recognizance, but that of a surety ; and, in either event, the books of practice say, the Sheriff should, in all cases of contempt, indiscriminately, take the defendant before a Judge, who will exercise a sound discretion, under the circumstances of the case, whether the defen-iant shall be let out on bail at all, and upon what terms, whether upon his own recognizance alone, or with a surety or sureties, and in what amount. This is highly reasonable and necessary. It would be extremely rigorous, in the case of a trifling contempt, to commit a party to close custody, and finally conduct him (as in this case) a distance of 300 miles, at enormous expense, for a contempt which is, perhaps, merely technical, and unattended with a single circumstance of aggravation. We think, therefore, that when the party requires it, the Sheriff should take him before a Judge, or commissioner authorized by the statute to take bail in these cases, who will determine what shall be the proper course, on being instructed as to the nature of the case. If not aggravated, and nothing beyond costs appears to be involved in the issue, a recognizance, in the usual sum of $100, will be taken, or a larger sum, if the aggravation of the of-fence or the amount in controversy shall demand more. In ordinary cases, too, when the defendant comes in upon the attachment, his recognizance is taken in the usual sum, to appear, de die in diem, and answer interrogatories. In the present case, it could not be necessary for the Sheriff to incur the loss of time, and the heavy disbursements incident t0 & personaj attendance. Let the defendant be discharged, on payment of costs to be taxed, exclusive of those for the attendance of the Sheriff upon the attachment, for the purpose of bringing the defendant into Court.

Rule accordingly.