ll.UI. 



BAIL. 



m 



for a irty whose coodiUon it to changed M to put it out o{ their 

 now to pefonn the alternative of their obligation without any 

 default of their own. Thus, if UM principal die before the return 

 of the writ of execution (the capita ad nti<fnnaul*m\ against him, 

 or if before that time be is made a peer of the realm, or become 

 a member of the Home of Common*; or if be become bankrupt 

 and obtain hi. certificate, or be discharged under the Insolvent 

 Act ; or if be he sentenced to transportation, and actually on board a 

 convict-ship under euch sentence, or be impressed into the Queen's 

 service, or be atnt out of the kingdom under an alien act ; or if the 

 pj'intiff U guilty of eome default, at if he do not proceed in due time 

 or in proper manner against the defendant ; or if he take a security 

 from the defendant, and thereby give him time without consent of the 

 bail, in tbeee caaea the bail are ezcuaed from performance of their 

 obligation, and will be relieved by the courts. In caaea where there is 

 not a total impoaribility of rendering the bail, but only a temporary 

 impracticability, the courta will not absolutely discharge the bail, but 

 will assist them in other mode* ; aa by bailing a habta* cormu, in order 

 to bring up the defendant to be rendered in canes where he in in legal 

 ctutody for crime, or by enlarging the time for making the render. 



6. Qf prnctedingt on t*e lait-bv*d and agaiutt the Jttrif.Vfe bare 

 Men, that when the defendant in discharged from arrest, he in most 

 caste enters into a bail-bond with sureties to the sheriff, the condition 

 of which bond ii that the defendant do cause special bail to be put 

 in for him to the action within eight days after execution f the 

 tepid*. If special bail are not put in and justified in proper time, 

 according to the rules of practice of the court, this bond becomes 

 forfeited, and the plaintiff then may either proceed against the sheriff 

 by calling upon him to bring in the defendant's body according to the 

 command of the writ ; or, if he is satisfied with the bail to the sheriff, 

 he may cause the sheriff to assign over to him the bail-bond, under the 

 statute 4 ft 6 Anne, c. 16, s. 20, and may in his own name sue the 

 defendant and his bail on the bond. The plaintiff, by adopting this 

 last course, in general discharges the sheriff from his liability ; and 

 therefore it is only resorted to when the sheriff's bail are of undoubted 

 sufficiency. If the plaintiff's proceedings on the bail-bond are irregular, 

 they will (like other proceedings) be set aside with costs. But the 

 courta will also stay such proceedings in many cases, even when they 

 are regular; the action on the bail-bond being in fact only a sub- 

 sidiary proceeding for enforcing the general object of bail. In cases 

 where there is really any defence to the original action any fair 

 question to try it is obvious that this can only be properly and 

 satisfactorily tried in that action, and not in the collateral action on 

 the bail-bond. Therefore, if the defendant makes application to the 

 court with a proper affidavit of merit! (that is, a good and lawful 

 defence,) in the original action, the courts will in general stay pro- 

 ceedings on the bail-bond upon terms, so as to give an opportunity for 

 a trial in the original action. 



If there is no bail-bond, or if the plaintiff is dissatisfied with the 

 sheriff's bail, he may take proceedings against the sheriff, who is 

 responsible for the due execution of the writ. The plaintiff therefore 

 obtains a rule or order of the court, calling upon him to make a return 

 to the writ (see r. 132, H. T. 1853), which must, by the 20 Geo. II. 

 c. 37, s. 2, be done before six months after the expiration of his office ; 

 and the rule must be served on the sheriff or his under-sheriff. This 

 is usually effected by leaving a copy (showing the original) at the office 

 of the sheriff's deputy in London. If there is no return, it is a con- 

 tempt of court, and an attachment against the sheriff will be granted. 

 To the rule to return the writ the sheriff may make such return as 

 is consistent with the fact, either that the defendant is not found in 

 his bailiwick, or that he has taken him (erjii corput) and has him 

 ready ; or that he is sick, or that he has escaped, or has been rescued ; 

 or that he has been discharged on making a deposit with the sheriff, 

 under the 43 Geo. III. c. 46, s. 2, ftc. Ac. If the return is false, the 

 sheriff is liable to an action. If he return repi rorpui et j.nratum habeo, 

 and if special bail are not put in and perfected in due time, the 

 plaintiff may either take an assignment of the bail-bond, if any given, 

 and proceed thereon against the bail, or he may obtain an order of the 

 court requiring the sheriff to bring in the body or person of the 

 defendant. If the plaintiff adopt the latter course, the sheriff must 

 either bring the defendant (roiufru/tirefy. by showing him to be in his 

 safe custody,) into court, or he must put in and perfect bail within the 

 time allowed by the rule. If he fail in this it is a contempt of court, 

 for which an attachment will issue on an affidavit that the rule has 

 been duly served, and that no bail is put in. As these proceedings 

 against the sheriff are (likn the proceedings on the bail-bond) regarded 

 by the courts as only intended to enforce the attainment of sufficient 

 bail, the courts will also in this case extend their indulgence to the 

 sheriff, and stay the proceedings against him, and let in a trial on the 

 menu for the benefit of the sheriff, or the bail, or the defendant, on 

 good bail being put in and perfected. 



The rules on the subject of bail, which were formerly very compli- 

 cated, and different in each separate court, have been of late much 

 simplified by rules of court, and by the statute above cited, for uni- 

 formity of process, which was introduced by the late Lord Tcnterden. 



7. Paying money into court in lieu of pedal bail. In cases where 

 the defendant has, hi pursuance of the 43 Oeo. III. c. 46, a. 2, in lieu 

 of bail to the sheriff, deposited in his hands the sum indorsed on the 



writ, and 1W. for costs, to answer the costs up to the eighth day 

 inclusive after the arrest, and the sheriff has paid these into court, as 

 he is bound to do, the defendant, instead of putting in and perfecting 

 special bail, may, by virtue of the 7 ft 8 Oeo. IV. c. 71 , s. 2, allow 

 ->: !i -urns, together with the additional sum of 1<V. to be by him iiaid 

 into court as a further security for costs, to remain in court to abide 

 the event of the suit. In other cases, where the defendant has not 



made such deposit with the sheriff, the defendant, instead of putting 



and perfecting spec 

 indorsed on the writ, and 20/. as a security for the costs of the action, 



in and 



cial bail, may deposit and pay into court the sum 



there to remain to abide the event of the suit In either case, de- 

 fendant should enter an appearance to the writ of summons ; and if 

 judgment be given for the plaintiff, he will be entitled, by order of 

 the court upon motion, to receive the money so remaining in, or so 

 deposited or paid into court, or so much thereof as will be Kiitli. 

 satisfy the sum recovered by the judgment and the costs of the appli- 

 cation. And if judgment be given for the defendant, or the plaintiff 

 discontinue or be otherwise barred, or if the sum deposited and paid 

 into court be more than sufficient to satisfy the pi. tint in", the money so 

 deposited or paid into court, or so much thereof as shall remain, will, 

 by order of the court upon motion, be repaid to the defendant. 



8. Proceeding:* under the Abtcondaig Debtor*' Arrett Ad, 1851. 

 Further legislative provision has been made by ' The Absconding 

 Debtors' Arrest Act, 1851,' which empowers country commissioners 

 of bankruptcy, and judges of county courts beyond the metropolitan 

 district, to issue, upon njmiUr application and similar affidavit to those 

 above considered, a warrant for the absconding debtor's arrest, to the 

 messenger of the commissioners of bankruptcy, or to the high bailiff 

 of the county court, indorsed in the same manner as a writ of capiat. 

 This warrant may be executed at any time within seven days from its 

 date inclusive ; the officer executing it must detain the debtor until 

 he has paid the debt and costs indorsed on the warrant, or given bail 

 according to the practice of the superior courts, or is otherwise law- 

 fully discharged, A copy of the warrant must be served upon the 

 debtor when arrested. The warrant may be executed in any part of 

 England, and is to be transmitted, if necessary, from the bailiff of the 

 county court whence issued to the bailiff of any other county court within 

 the district of which the debtor is supposed to be, and such latter bailiff 

 may lawfully execute it, as though it had been directed to him by the 

 judge of the county court out of which it issued. But as this warrant 

 is only auxiliary to the process under the 1 42 Viet. c. 110, s. 3, it 

 becomes void and of no effect as a protection to the creditor, unless a 

 capiat, and, in cases where no action was pending in the superior 

 courts, a writ of summons therein, be forthwith issued and served 

 within seven days from the day of the date of the warrant inclusive. 

 Upon such service of the capias, the debtor is deemed to have been 

 arrested by virtue of the capita, and all proceedings must be had upon 

 it as if it had been issued prior to the issuing of that warrant, and 

 according to the ordinary practice. If the debtor, upon his arrest under 

 the warrant, pays the debt and costs, and is accordingly released from 

 custody, the capiat must be issued, but need not, of course, be served. 

 The debtor, when arrested, may at once pay the debt and costs 

 indorsed on the warrant to the officer duly arresting him, or enter 

 into a bail-bond to him with two sufficient sureties for the amount 

 indorsed, conditioned to put in special bail as required by the warrant, 

 or to make deposit of the sum so indorsed, together with Id/, for costs, 

 and thereupon he is entitled to be discharged from custody. Any 

 person for whose arrest a warrant has been granted may, either before 

 or after arrest, and before the writ of capiat has been issued, apply to 

 any commissioner of bankruptcy or county court judge, or to any 

 judge of the superior courts, or to the court mentioned in the affidavit 

 of debt or warrant for the arrest, for a summons or rule calling upon 

 the creditor who has the warrant to show cause why it should not be 

 set aside (if the application is made before arrest), or why the debtor 

 should not be discharged out of custody (if the application is made 

 after arrest) ; and the commissioner or judge may make absolute or 

 discharge the summons or rule, and direct the costs of the application 

 to be paid by either party, or make such other order therein as he 

 thinks fit ; but such order may be discharged or varied by the court, 

 on application made by either party dissatisfied with it. (See Arch- 

 bold's 'Practice,' 10th edit., by Prentice, vol. i. pt. 2; and Pollock's 

 ' County Court Practice,' 3rd edit. pt. 1, cap. 26.) 



Bail in error. These are sureties required to bo given by a de- 

 fendant at law, who sues out a writ of error to reverse a judgment 

 which has passed against him, and who desires to stay execution 

 in the meantime. The condition of the recognizance into which they 

 enter is, that the party suing out the writ of error shall prosecute 

 it with effect, and if the judgment be affirmed, shall satisfy the debt 

 and costs recovered, together with all such costs and damages as are 

 awarded by reason of the delay of execution occasioned by the writ of 

 error, or else that the bail shall do it for him. By the common law, 

 no bail in error was required, and a defendant might therefore delay a 

 plaintiff of his execution without giving any security to prosecute his 

 writ of ITPT, or to pay the debt and cost* if the writ failed. This 

 inconvenience was only partially remedied by the statute 3 Jac. I. c. 8, 

 which required bail in error only in certain particular actions, and by 

 the 13 Car. II. stat. ii, c. 2, and the 16 ft 17 Car. II. c. 8, which 

 rendered it necessary only where the judgment was after verdict, and 



