But suppose the Sheriff to have misconceived his duty, ought we not to re.ieve him by setting *451the proceedings right ii: point of form, where no possible injury can arise to the defendant?]
There is no pretence but that other process may be served on the defendant. Here is no misapprehension of duty alleged. It is not pretended that the Sheriff did not know he could carry the defendant to jail, and detain her till she endorsed an appearance. In reality, it is a voluntary escape.
[Woodworth, J.If a bail bond had been given, could the plaintiff have required special bail ? If not, then the entering an appearance now, is doing precisely what the defendant might have done, had the Sheriff acceded to the of fer of a bail bond. I apprehend that entering an appear anee with the Clerk would have fulfilled the condition of the bail bond, taken under these circumstances.
Sutherland, J.I am not prepared to say that because an obstinate old woman refuses to endorse her appearance, the Sheriff is bound to take her to jail. If he prefer letting her go, and comes here for relief, in a case where she cannot possibly be prejudiced, I see no good reason why we should not order an appearance to be entered.
Savage, Ch. J.What injury can possibly arise to the defendant from this rule ? I do not see what object there is in opposing it.]
We do not wish to pay the costs of these proceedings. They were irregular from the first; and the expense should fall upon the one who committed the irregularity.
[Woodworth, J.The defendant offered to give bail to the Sheriff, which was refused. The Sheriff took a course which was less rigid, than the orce offered. It seems to me, that to deny this rule would be to allow form to prevail over substance.]
Though the Sheriff let the defendant out of custody without bail, if he have her at the return of the writ, it is enough; *452but the Courts will hold him strictly to his duty. The She rjg- s{j0ui¿ have retaken the defendant. The letting a de» fendant go without taking bail, is not such a voluntary escape as will prevent the Sheriff from retaking him, and having his body at the return of the process. (Per Ashurst, J. in 7 T. R. 239.)
Woodworth, J.I think it inferable from the circumstances of this case that the Sheriff misconceived the precise line of conduct which he had a right to pursue in order to compel the endorsement of an appearance.
Rule absolute.