7,5 



BAIL. 



BAIL. 



person actually arrested ; and it was then discretionary in the court 

 either to discharge him on common bail (that is, fictitious sureties, John 

 Doe and Richard Doe) being entered for his appearance, or to detain 

 him till he found real sureties or special bail. But this discretion in 

 the court was abolished by the 12 Geo. I. c. 29, which provided that 

 no person should be held to special bail unless the demand amounted 

 to 101., over and above costs, which sum was increased, by the 7 & 8 

 Geo. IV. c. 71, to 201. ; and for less than that sum no debtor could 

 thereafter be arrested and required to give special bail. In all cases 

 where the defendant was not actually arrested, the ancient fiction, 

 stating that he was delivered to bail to John Doe and Richard Doe, 

 continued in the Court of King's Bench to be the only mode of his 

 effectually entering an appearance to the suit till the Act for Uni- 

 formity of Process, 2 WilL IV. c. 39, s. 2, which provided, with an ex- 

 ception removed by the Common Law Procedure Act, 1852, sec. 24, that, 

 for the future, the appearance of the defendant should be by entering a 

 memorandum that he either appears in person or by some attorney to 

 the suit instituted by the plaintiff, so that common bail as a step in the 

 cause was thenceforth entirely abolished. 



Special Hail. In considering the subject of special bail, we shall 

 explain : 1, in what cases and in what manner special bail are rendered 

 necessary ; 2, who may beceme special bail ; 3, the mode of putting in 

 bail and their justification ; 4, the nature and extent of their liability ; 

 5, the mode in which they may be discharged ; 6, proceedings on the 

 bail bond and against the sheriff; 7, paying money into court in lieu 

 of special bail ; 8, proceedings under the Absconding Debtors Arrest 

 Act, 1851. 



1. In what cases special bail is necessary. We have seen that, by the 

 748 Geo. IV. c. 71, a defendant could only be arrested and held to 

 special bail (which are convertible terms) where the plaintiff's demand 

 amounted to 201., over and above costs. By a subsequent statute 

 (142 Viet. c. 110, s. 3) the cases in which a defendant may be held to 

 bail in civil causes are confined to those therein provided. It enacts, 

 that if a plaintiff in any action in any of the superior courts of law at 

 Westminster, in which the defendant is now liable to arrest, shall show 

 by affidavit to the satisfaction of a judge of one of the said courts that 

 such plaintiff hag a cause of action against such defendant or defendants 

 to the amount of 201. or upwards, or has sustained damage to that 

 amount, and that there is probable cause for believing that the defendant 

 or any one or more of the defendants is or are about to quit England, 

 unless he or they be forthwith apprehended, such judge may order the 

 defendant or defendants to be held to bail in any sum he may think fit, 

 not exceeding the amount of the debt or damages. The plaintiff may 

 thereupon sue out a writ of capias, and arrest the defendant, who, when 

 no arrested, is to remain in custody till he shall have given a bail bond 

 to the sheriff, or shall have made deposit of the sum endorsed on such 

 writ of capias, together with 101. for the costs. The application for 

 this order is to be made to a judge at chambers, and is, of course, made 

 ex pa.rU. It should not be made until after the issue (not service) of 

 the writ of summons, although the affidavit in support of it may be 

 made before. This affidavit must clearly disclose the grounds of the 

 defendant's liability, and show a complete and subsisting cause of 

 action. The amount of the claim should upon no account be over- 

 stated. > The facts which evidence the intention of the defendant to 

 leave the country must be stated in the affidavit, and it is not sufficient 

 that the deponent merely states his own belief in the existence of such 

 intention. A short and merely temporary absence in the ordinary 

 course of business, as in the case of the captain of a steamer plying 

 between an English and a Continental port, is not a "quitting 

 England " within the meaning of this statute. 



A copy of the writ of capias must be delivered by the sheriff to the 

 defendant upon his arrest. Instead of giving bail, he may, under the 

 43 Geo. HI. c. 46, s. 2, recognised by the above enactment, deposit 

 with the sheriff the amount endorsed, with 101. for costs, on receiving 

 which deposit the sheriff is bound to discharge him If he does not 

 make this deposit under the Statute, he either remains in the sheriff's 

 custody, or is discharged on entering into a bail-bond to the sheriff, 

 with two or more sufficient sureties, the condition of which is, that the 

 defendant shall duly put in special bail to the action within eight days 

 from the execution of the writ : the condition of the bond thus given 

 can only be satisfied by special bail being duly put in and perfected, 

 unless money be paid into court under the 748 Geo. IV. c. 76, s. 2, 

 as will be afterwards explained. 



2. tt'/ni may become special bail. The general qualification of special 

 bail is that they should be householders or freeholders. A peer of the 

 realm, a member of the House of Commons, a servant in the king's 

 household liable to be called on to attend the king, cannot become 

 bail, all such persons being exempted from the ordinary process of the 

 courts. It is a rule of the courts that no attorney shall become bail, 

 which rule has been extended to their clerks, and was intended to pro- 

 tect attorneys from the importunities of those who employ them ; and 

 no person can be bail who is indemnified for his liability by the 

 defendant's attorney. In order to prevent extortion, no sheriffs 

 officer, bailiff, or person concerned in the execution of process can 

 become bail, which rule has been extended to keepers of prisons and 

 turnkeys. Uucertificated bankrupts, and insolvent debtors who have 

 not paid 20*. in the pound upon their scheduled debts, are disqualified 

 from becoming bail by their want of sufficient property. For the 



ABTS A_N1> SCI. DIV. VOL. I. 



same reason, persons who have suffered their parents or near relations 

 to receive parochial relief have been rejected. Foreigners cannot 

 become bail merely in respect of property abroad which is beyond the 

 court's jurisdiction ; but it seems that British subjects may become 

 bail in respect of property abroad belonging to such British subjects. 

 The special bail, in order to justify, must be worth double the sum 

 indorsed on the writ of capias, or if that exceed WOOL, then 10001. in 

 addition to it, over and above their just debts. 



3. Of the mode of putting in or recording bail and their justification* 

 Special bail may be put in by the defendant himself or his attorney, 

 or by the sheriff or his bail in order to their own indemnity ; and they 

 may be put in either before a judge in London or (in vacation) before 

 a commissioner under 1 & 2 Viet. c. 45, s. 4, before a judge of assize 

 in his circuit, or a commissioner in the country. When bail are put 

 in, they are required to make a formal acknowledgment, called a recog- 

 nizance of bail, that they owe, to the plaintiff the sum sworn to, and 

 that they undertake to pay the same and all costs, to be levied upon 

 their property, unless the defendant, if defeated in the action, pays the 

 debt or damages, and costs, or renders himself to prison ; or, in case 

 he fails to do either, unless they, the bail, pay the costs and money 

 recovered, for him, or surrender him to custody. 



Bail is thus put in either absolutely, with the consent of the plaintiff's 

 attorney, which is very unusual in practice, or de bene esse, to be per- 

 fected, subject to the plaintiff's approval or exception. When put in 

 de bene esse, a formal notice in writing of then- being put in should be 

 forthwith given to the plaintiff's attorney, accompanied by an affidavit 

 of justification of each of the bail, to the effect that they are free- 

 holders or householders, and are worth the amount necessary for 

 justification, as above explained. Four days' notice of intention 

 simultaneously to put in and justify special bail may also be given 

 where that course is preferred. If notice of justifying the bail was 

 duly given, and accompanied by the affidavits of sufficiency above 

 mentioned, the bail will be considered as justified, unless the plaintiff 

 have given notice of and entered his exception to them at least one day 

 before that appointed for their justification. But if the bail were not 

 put in in due time, they must justify whether excepted to or not. If 

 unopposed, the justification is allowed as of course. 



The bail may be opposed on their justification by personal exami- 

 nation as to their sufficiency, or by affidavits disclosing such facts as 

 show some irregularity in the proceedings, or that the bail are really 

 incapable of fulfilling their engagement. The corrupt practice of men 

 hiring themselves out as bail is as old as the time of Charles II., when 

 Butler alludes to it, and it continued to a considerable extent until the 

 amendment of the law relating to arrest on mesne process. Personating 

 another person, so as to render him liable as bail, was made a capital 

 felony by the statutes 21 Jac. I. c. 26, and 4 & 5 Will, and Mary, c. 4 ; 

 but by the 11 Geo. IV., and 1 Will. IV. c. 66, s. 11, it was reduced to 

 a felony, punishable with transportation or imprisonment. 



4. Of the extent of the liability of bail. We have seen that the bail 

 enter into a recognizance, that if the defendant is convicted, he shall 

 pay the debt or damages, and costs recovered, or render his body to the 

 prison of the court ; and therefore if the plaintiff proceed in his action in 

 due time, for the cause of action expressed in the process, and regularly 

 recover judgment, the bail are in general liable to pay the money 

 which he recovers, or to render the defendant to prison. Anciently an 

 absurd practice prevailed, that if a man became bail for another, in 

 however small a sum, he was bail for him in all actions brought by 

 the same plaintiff against the same defendant during the same term, 

 were the sums ever so great : while, on the other hand, if the plaintiff 

 declared in his action against the defendant for a greater sum than 

 was expressed in the process, the bail were wholly discharged. It is 

 now however settled (see Rules of Hilary Term, 1853, r. 109), that 

 whatever sum may be declared for or recovered by the plaintiff in the 

 particular action, the bail remain liable ; but they are only together 

 liable to the extent of the sum sworn to by the plaintiff, and the costs 

 of suit, not exceeding in the whole the amount of their recognizance. 

 They are of course further liable to the costs of any proceedings that 

 it may become necessary to take against them to enforce their liability. 

 They are not liable to the costs *of proceedings in error against their 

 principal. The liability of the bail on the recognizance attaches, 

 according to its terms, on conviction of the defendant, that is, on final 

 judgment being entered against him ; but as the recognizance is in the 

 alternative, they are not immediately fixed with the debt, &e.,but have 

 a certain time allowed by the practice of the courts, within which, 

 even after judgment, they may discharge themselves by rendering the 

 defendant's person ; the length of which interval is determined by the 

 mode of proceeding by which the plaintiff proceeds against the bail on 

 their recognizance. A writ of ca. sa. must have been issued against 

 the defendant, and have been returned before any proceedings can be 

 had against the bail. [CAPIAS.] 



5. The modes in which the bail are discharged. The bail are dis- 

 charged either by performing the recognizance, or by some matters 

 which operate to excuse them from such performance. As to the 

 special circumstances which operate to relieve the bail from their 

 obligation, the general rule is, that wherever by the act of God or by 

 the act of the law, a total impossibility or temporary impracticability 

 to render the defendant has been occasioned, the courts will relieve 

 the bail from the unforeseen consequences of having become bound 



Si 



