B A 
juftice, or other judge on a habeas corpus, the bail taken 
in the inferior court is dilmijfed ; though the laff bail be 
not filed prel'ently, nor till the next term. Yclv. 120,121. 
Yet it has been held, where a caufe is removed out of an 
inferior court by habeas corpus, if the bail below offer 
theilifelves to be bail above, the.y (hall be taken, not be¬ 
ing excepted againft below, unlels the caufe comes out of 
London. For "the fufficiency of the bail there is at the 
peril of the clerk, and he is refponlible to the plaintiff': fio 
that the plaintiff had not the liberty of excepting againft 
them, and the clerk is not refponfible for their deficiency 
in the court above, though he was in London. 1 Salh.yj. 
In London it is faid, fpecial bail is to be given in aiSlion 
of account, &c. But on removal by habeas corpus .into 
B.’R. that court will accept common bail. 2&/7.404. 
There is not only bail to appear, &c. on writs of error; 
but alfo in audita querela, a recognizance of bail.muff; be 
acknowledged ; and upon a writ of attaint, to profecute, 
Sc c. Jenh.Ceut. 129. 
By the ftat. 3 Jac. I. c. 8, No execution (hall be delayed 
by any writ of error or fuperfedeas thereupon, unlefs bail 
fh.all be given, in double the fum adjudged, to profecute 
the writ of error with cffedi ; and alfo to fatisfy the debt, 
damages, and colts, adjudged, See. If a catife, removed 
from an inferior court, be remanded back by procedendo 
the fame term, the original bail in the inferior court are 
chargeable, but not if remanded in another term. Cro. 
Jac. 363. One taken on a writ of execution is not bail¬ 
able by law ; except an audita querela be brought; but 
where a writ of error is brought and allowed, if the de¬ 
fendant be not in execution, there (ball not be an execu¬ 
tion awarded againft him, at the requelt of the bail, though 
he be prefent in court. 1 NclJ'. Abr. 331. The bail ought 
not to join with the principal, nor the principal with the 
bail, in a writ of error to reverfe the judgment againft 
either. Cro. Jac. 384. 
On capis adfalls faciendum againft the defendant returned 
veu ejl inventus, feire facias is to itfue againft the bail, or an 
action may be brought. Where a defendant renders his 
body in difeharge of the bail, the plaintiff is by the rules 
of the court to make his choice of proceeding in execu¬ 
tion, whether he will, charge body, goods, or lands. 1 
Lilt. 183. And, if the principal after judgment renders 
not himfelf in difeharge of his bail, it is at the election of 
the plaintiff to take out execution either againft him or 
proceed againft his bail : but, if he takes the bail in exe¬ 
cution, though he hath not full fatisfaftion, he (hall never 
after take the principal; and, if the principal be taken, he 
may not after meddle with the bail. Where two are bail, 
although one be in execution, the plaintiff may take the 
other. Cro. Jac. 320. 2BulJ}.6%. If a principal render 
himfelf, and there is none to require his commitment, the 
court is ex officio to commit him ; and, if the plaintiff re- 
fufe him, he (hall be di(charged, and an entry made of it 
«pon the record. Moor,CaJ\ 1249. 1 Leon. 59. ■ There inuft 
be an exonerctur entered, to difeharge the bail. If the de¬ 
fendant dies before a capis ad[atisfac. againft him returned 
and filed, the bail will be difeharged. 1. Lill. 177-. 
The bail upon a writ of error cannot render the party in 
their difeharge ; becaufe they are bound in a rCcognifance 
that the party (ball profecute the writ of error with effect, 
or pay'the money if judgment be affirmed. 2 £7-0.402. 3 
Mod. 87. Nor can the bail in fetch cafe furrender the prin¬ 
cipal, though he become a bankrupt pending the writ of 
error. 1 Term Rep. 624. Before a feire facias taken out a- 
gainft bail, the principal may render his body in difeharge 
of the bail: and, if the bail bring in the principal before 
the return of the fecond fci.fac. againft them, they (hall 
be difeharged. 1 Rol. Abr.. 250. xLill. 471. Anciently the 
bail were to bring in the principal upon the fir ft Jcirc Jac. 
or it would not be allowed. 3 Bulf. 182. 
If the bail mean to acquit themfelves of their recogni- 
fance entirely, and run no hazard of the death of the de. 
fendant, then they mu ft render him in their difeharge, be¬ 
fore the return of the ca.fa* as the'death-of the pria- 
Vol. II. No. 93. 
I L, 62^ 
cipal afterwards will not difeharge them. 2 Wilf. 67'v ' 2 
Cro. 163. Jon. 139. Str. 511. But, if they do not, then 
they have until the return day (if the proceedings be by 
b\\\) fedente curia, of the firft feire facias, if it be returned 
feire feci, but if a nihil is returned thereon, then until the 
return day ,fedente curia of the fecond Jci.fq. And, if the 
proceedings be by original, they have till the quarto diepojl 
of the return' of the fixttJ'ci. fa. if returned feire fcci\ if 
not, then till the quarto die pojl oi the return-day of the fe¬ 
cond. 4 Burr. 2134. 1 Wilf. 270. If an aftion be brought, 
then eight days in full term after the return. R. Tri/i. 1 An. 
If bail furrender the principal at or before the return of 
the fecond feirefacias, it is good, although there be not 
immediate notice of it to the plaintiff; and if, through 
want of notice, he is at further charge againft the bail, 
that fliall not vitiate the furrender, but the bail (hall not 
be delivered till they pay fuch charges:' if at any time, 
after the return of the capias, the bail furrender the prin¬ 
cipal at a judge’s chamber, and he thereupon is commit¬ 
ted to the tipftaff,. from whom he efcapes, dec. this will 
not be a.good furrender: but if it be before, or on a c«- 
pias returned, it is otherwife, the one being fin indulgence, 
and the other matter of right. Mod. caf. 23S. When 4 
perfon makes his efcape out of prifon, and is retaken and 
bailed; the bail (hall.be difeharged on writ to the flierift’ 
commanding him to keep the prifoner in difeharge of the 
bail. 1 Anne, ft. 2, c. 6. 
The judges of the courts at Weftminfter have power 
by ftatute to appoint commiffioners in every county to take 
recognizances of bail, in caufes depending in their courts ; 
and to make fuch rules for juftifying. the bail as they (hall, 
think fit, &c. Stat. 4 Sc 5 Will, and Mary, c. 4. The com- 
miilioners are to take bail, but are obliged by rule of court 
to keep a book wherein are the names of the plaintiff, de¬ 
fendant, and bail, and the perfon who tranfmits the fame, 
and who makes affidavit that the recognifance was duly 
acknowledged in his prefence: on fuch affidavit the jud¬ 
ges make a conditional allocatur, and the bail are to ffand 
abfolute, unlefs the plaintiff excepts againft them within 
twenty days, and, if he excepts, the bail may jnftify by af¬ 
fidavit before the commiffioners in the country. Gilb. 32. 
If a defendant puts in bail by a wrong name, the pro¬ 
ceedings fliall nevertheless be good ; for otherwife every 
man impleaded may give a falfe name to his attorney by 
which he will be bailed, and then plead it in arreft of 
judgment. Goldfl. 138. But it hath been held, that if the 
bail be entered in one name, and the declaration and all 
the proceedings are by a contrary name, it will be errone¬ 
ous. Cro. Eliz. 223. So if there is bail, and the bail be 
taken off the file, the plaintiff is without remedy : though, 
where a habeas corpus and bail-piece were loft in B. R. new 
ones were ordered to be made out. Style 261. Statute 21 
Jac. 1 . c. 26, enacts, That it is felony without benefit of 
clergy to acknowledge, or procure to be acknowledged, 
any bail in the name of another perfon not privy or c.on- 
_ fenting thereto; provided that it fliall not corrupt the 
blood, nor take away the dower. Stat. 4 & 5 Will, and 
Mary, c.4, f. 4, enatfts, That any perfon, reprefenting or 
perfonating another before commiffioners appointed to take 
bail, fliall be adjudged guilty of felony. 
Special bail, which is taken before a judge, or by com¬ 
miffioners in the country, when accepted, is to be filed ; 
after twenty days notice given of putting in fpccial bail be¬ 
fore a judge, on a ccpi corpus, if there be no exception, the 
bail fliall be filed in four days. 1 Lill. Abr. 174. Upon a 
ccpi corpus twenty days are allowed to except againft tli’e 
bail: fo on a writ of error; and you need not give notice ; 
but you cannot take out execution without giving a four- 
days rule to put in better bail: in all other cafes notice 
mu ft be given. Upon a habeas corpus, eight-and-tvventy 
days are appointed to except againft the bail, and after 
that, if it be not excepted againft, it fliall be filed in four 
days. 1 Salh. 98. R. M. 8 An. 
The exception to bail put in before a judge, muff: be en¬ 
tered in tjie bail-book, at the judge’s chambers at the fide 
7 U of 
