The People, ex rel. Tomb, against The Judges of the Court of Common Pleas of the county of Washington

The People, ex rel. Tomb, against The Judges of the Court of Common Pleas of the county of Washington. from a juscourt tfUcom mon pleas An alternative mandamus was granted in January term last, requiring the defendants to vacate a rule granted by ^lem’ prohibiting Tomb from appearing in a cause brought into the Court of Common Pleas of Washington county by appeal from a Justice’s Court, by Tomb, as appellant, against one Munson, as appellee. The Judges returned that the cause in the Justice’s Court was by Munspn, plaintiff, against Tomb, defendant; that the Justice rendered judgment against Tomb, for $25,06, besides costs—whereupon Tomb appealed ; that to the return of the Justice was annexed a bond of the appellant, and one William Tomb, as • a his security, duly approved of by the Justice, as the act, áre. provides ; that in August term, 1818, the Court of Comínon Pléas made a rule, “ that on all appeals from a Justicc’s Court, if the appellant should be a non-resident of the éounty of Washington, on filing an affidavit thereof, the ii . , , . appellee might enter a rule in the common rule book, mat the proceedings on the appellant’s partbe stayed until seenritv for costs should be filed in the office of the Clerk of that Court, which rule should not be operative till notice thereof should be duly served ; which security should be a bond to be executed by a sufficient person, being a house-keeper of Said county, in the sum of 50 dollars, conditioned for the J payment of such costs as might be adjudged to the appellee on the determination of the appeal between the parties, and accompanied with an affidavit, specifying that the person ex-ecutmgthe bond is a house-keeper (m some town, particularizing it) in the said county; and that he is worth the sum of 100 dollars, over and above all debts owing by him that this rule still remains in force ; that the proceedings on the part of Tomb were stayed under this rule ; that a motion had been made to vacate the rule staying proceedings, but denied ; and farther, that, at December term, 1822, upon motion, grounded on affidavit, that the appellant and his bail had absconded and left the county, the Court made a rule against the consent of ToniVs counsel, that when the said cause should be called on the calendar, unless a bond, in pursuance of the rule before entered, should be filed, previous to its being so called, the appellee should be entitled to have the said judgment affirmed, ex parte, or by default; that on the cause being called, the Court accordingly refused to let the counsel of Tomb appear, he not having com» plied with the rule ; and the judgment was affirmed by default. CRUIlOt 1*6“ strain ths apPellant from the cause, uncosts^gíveni onthe ground that he is a non-resident. the^orraerthat until security j^en,C°the appellee sbajK aa affirmance ot bis ludf” ment, ex parte* The security thTstatute, (scss- 4b is all that can be re1mi"eái Upon the coming in of this return, J. Willard, for the plaintiff, moved for a peremptory man-damus. S. Stevens, contra, said this Court would not interfere with the proceedings of the Courts of Common Pleas in mere matters of practice. We have proceeded according to a. general rule of the Washington Common Pleas. Not only so, we have obtained a rule on a special application, forbidding the appellant to appear, upon the ground that both himself and bail had absconded. The appellee had, by this, lost all remedy for his costs, Willard, in reply. • If the Justice has taken insufficient bail, he is liable ; but this is no reason why we should be put to procure additional security. The statute (sess. 41, ch. 94, s. 17,) is complied with. By this section, the condition of the bond is merely to pay the judgment and costs. The 19th section of this statute requires the Common Pleas to cause the parties to proceed, by rules adapted to the case, with all reasonable diligence, to the hearing of the cause. But the only rules they have a right to make, under this statute, are such as shall expedite the cause—not restrain the party from proceeding. The Court here, first tie him up , and prevent his appearing; and then order a default against him. [MAJORITY — Curia.] Curia. The proceedings of the Common Pleas were altogether irregular. The statute prescribes what security shall be given to ensure a hearing; and that when the Court of Common Pleas become possessed of the cause, they shall, upon application of either party, and by rules adapted to the case, cause the parties to proceed, with all reasonable diligence, to the hearing of the cause. They cannot require additional security beyond that prescribed in the statute. Suppse a defendant gives bail, who justify.: These bail become insolvent before trial : Was it ever heard or thought of, that the Court may require him to give additional bail, upon penalty of being refused a hearing for his non-compliance ? To allow of this proceeding would be perverting the plain intent and purpose of the statute, to which the Common Pleas must be confined. Rule for a peremptory mandamus.