Whitford v. Goodwin , 13 R.I. 145 ( 1880 )

We think the bond was fatally defective in that it had only one surety, whereas the statute calls for "sufficient sureties." We think it was not amendable under Gen. Stat. R.I. cap. 224, § 4, for § 4 is only applicable in favor of the defendant and on his motion. And it was not amendable under Gen. Stat. R.I. cap. 199, § 4, unless it can be regarded as a part of the "process." We have come to the conclusion that it cannot be so regarded. It is something collateral to the process, not a part of it. The process runs against the defendant; the bond is takenfor him, the taking of it being required as a condition precedent to the service of the writ. The motion to dismiss, therefore, having been seasonably made, ought to have been granted. Greely v. Currier, 39 Me. 516; Claflin v. Thayer, 13 Gray, 459. The exceptions must, therefore, be sustained and the action dismissed. In this case the defendant asks judgment only for costs. It is, therefore, unnecessary to determine whether, if he asked it, he could have a judgment for return and restoration under our statute, after dismissal on his own motion. We give him judgment for costs.

Judgment for the defendant for costs.