626 B A 
©f the bail there put in, after this manner: I do except a - 
gainf this bail, A. B. attorn, for the plaintiff. And, if there 
be no fuch exception, the defendant’s attorney may take 
, the bail-piece from the judge’s chamber, and file ir. Bail 
is not properly fuch until it is filed, when it is of record : 
but it {hall be accounted good, till-the fame is queftioned 
and difallowed. 
Bail cannot be juftified before a judge in his chamber, 
except it be by conlent, or for neceflity in vacation; but 
in the latter cafe they ought to be jullified again in term, 
and upon that the defendant is compelled to accept a de¬ 
claration to go to trial at the afiifes, if it be an iffuable 
term; and, upon putting in bail, it is not enough to give 
notice of their being put in, but it ought to be of their 
names, places of abode, and trade or vocation, that the 
plaintiff may know how to enquire after them. 6 Mod.2 4. 
It being doubtful whether Sunday fhonld be reckoned 
as one day in notice to juftify bail, it was determined per 
cur. that for the future Sunday fhould not be accounted 
one, (it not being a proper day to enquire after bail;) but 
two days notice muff be given, of which Sunday fhall not 
be one; upon motion for defendant to juftify bail, notice 
was ferved Saturday June 23, to Juftify bail Monday 25 ; 
the notice being infufficient, the bail was not fullered to 
juftify. Notes inC. B. 220. 
After the plaintiff has entered his exception, and given 
notice thereof to the defendant, the bail (to difcharge the 
bond) mu ft perfonally appear in court within the time li¬ 
mited by the rules thereof, and juftify themfelves, (or by 
affidavit, if taken before commiffioners in the country,) and 
the plaintiff may oppofe them by his counfcd ; if it appear 
they are infufficient, the court will rejeft them, and leave 
the plaintiff at liberty to proceed upon the bail-bond, or 
againft the fheriff. Bail coming to juftify, and not being 
prefent at the fitting of the court, muft wait until the rifing. 
Generally, bail are oppofed on five grounds with effeft. 
lit. That there is fome miftake in the notice to juftify; 
namely, that it fhould have been given two days previous, 
inftead of one. adly, That the bail have affumed names 
that are either feigned, or belong to other perfons, contrary 
to the llatutes 21 Jac. I. and 4 & 5 Will, and Mary. But 
the court will not vacate the proceedings againft the party 
perfonated, until the offender be convifted (1 Vent. 301); 
nor can a conviftion take place, until the bail-piece be 
filed. 2 Sid- 90. 3d. A third ground of oppofing bail is, 
that they are not houfekeepers; if they be, the rent paid 
Is immaterial, though under iol. {Loft. 148); nor is it ne- 
ceffiary they fhould have been affeffed to the poor’s rate. 
4tlaly> They may be oppofed on the ground of their not 
being worth double the fum fworn to, after payment of 
all their debts. Under this head may be ranked bank¬ 
rupts, who have not obtained their certificates; or fuch as 
have been twice bankrupts, and not paid 15s. in the pound. 
M. 24 Geo. III. Laflly, after the expiration of the rule 
to bring in the body. Loft 438. M. 20 Geo. III. If the 
bail do not juflify at the day given (being the laft day they 
have), they are out of court. Nor can they juflify after 
the rule upon the fheriff, to bring in the body, is expired, 
without leave of the court. Loft. 88. 
In cafe the defendant by negleft has fuffered the plain¬ 
tiff to take an affignment of tire bond, and he has loft a 
trial; if he would wifh to try the caufe, he muft move the 
court for that purpofe on a fpeclal affidavit containing me¬ 
rits, if it be in term time ; if in vacation, he may apply and 
obtain a Judge’s order, which will be granted, upon put¬ 
ting in and perfecting bail, paying the cofts incurred, re¬ 
ceiving a declaration in the original aftion, pleading iffu- 
ahly, and taking fhort notice of trial, fo as not to delay the 
plaintiff, and confenting that the bond ftand as a fecurity. 
But the court of K. B. has not yet faid, that the plaintiff 
ihall take judgment on the actions upon the bond, although 
the practice in the Common Pleas is fo. 
If the bond be irregularly aftigned, defendant may move 
the court to fet the proceedings afide for irregularity, upon 
an affidavit, dating the particular fafts. If the court flay 
T L. 
the proceedings on the bond, the defendant is not at liberty 
to plead in abatement, but in chief. Salk. 519; nor will 
the court order the bond to be delivered up to be cancel-, 
led, on the ground of a mfnomer. 3 Term Rep, 572. 
Pending a rule to fet afide proceedings for irregularity, 
and to flay proceedings, plaintiff took an affignment of the 
bond in the mean time ; the court agreed that the proceed¬ 
ings were totally fufpended, by an aft of the court, and 
made the rule abfolute to fet afide the affignment of the 
bond, as having been made too foon. 4 Term Rep. 
The court may adjudge bail fufficient, when the plain¬ 
tiff will not accept of it. Alfo the court on motion, ora 
judge at his chamber, will order a common appearance to 
be taken, when fpecial bail is not required, on affidavit 
made by the defendant of the fmallnefs of the debt due. 
See. The putting in of a declaration, and the acceptance 
of it by the defendant’s attorney with the privity of the 
plaintiff’s attorney, is an acceptance of the bail. 
When a fheriff hath taken good bail of the defendant, 
he will on a rule return a cepi, and affign the bail-bond to 
plaintiff, which may be done by indorfement without 
ftamp, fo as it be ftamped before aftion brought thereup¬ 
on ; and then the defendant and bail may be fued on the 
bond, by the plaintiff in his own name, i.e. as affignee of 
tire fheriff. Stat. 4 & 5 Anne, c. 16. Tire aftion muft be 
brought in the fame court, where the original writ was fued 
out. 3 Burr. 1923. The venue may be laid in any county. 
Str, 727. 2 Ld. Raym. 1455. But, if the plaintiff takes an 
affignment of the bail-bond, though the bail is infufficient, 
the court will not amerce the fheriff. 1 Salk. 99. In cafe 
the defendant doth not put in bail, the attorney for the 
plaintiff is to call on the ftieriff for his return of the writ; 
and fo proceed to an attachment againft the ftieriff. If on 
a cepi corpus no bail is returned, a rule will be made out to 
bring in the defendant’s body. Though a defendant, with 
leave of the court, may depofit money in court inftead of 
bail; and in fuch cafe the plaintiff /hall be ordered to 
wave other bail. Lill. Abr. Trin. 23 Car. B. R. if more 
damages, &c. are recovered than mentioned in the plaint, 
or than the fum wherein the bail is bound, the bail will 
not be liable for the furplus. 1 Salk. 102. A bail cannot 
be witnefs for the defendant at the trial; but the court, 
on motion, will difcharge the bail, upon giving other fuffi¬ 
cient bail. Wood’s Inf. 582. Bail-pieces are written on a 
fmall fquare piece of parchment, with the corners cut off 
at the bottom. 
Of Bail in Criminal Cases. 
At common law bail was allowed for all offences except 
murder. 2 Inf. 109. And, if the party accufed could find 
fufficient fureties, he was not to be committed to prifon ; 
for all perfons might be bailed till convifted of the of¬ 
fence. 2 Inf. 186. But by ftatute it was after enafted, 
that in cafe of homicide the offender fhould not be bailed : 
and, by our ftatutes, murderers, out-laws, houfe-burners, 
thieves openly defamed, &c. are not bailable ; but, where 
perfons are accufed of larceny, as acceffories to felony, or 
under light fufpicion, they may be admitted to bail. Stat. 
3 Edw. 1 . c. 15. 
One indifted and found guilty of the death of a man 
by mifadventure, as by cafting a ftone over a houfe, ana by 
chance killing a man, woman, or child, is not bailable. 3 
Edw. III. Corone 354. One indifted of confpiracy, viz. 
that he with others confpired falfely to indift another of 
murder or felony, by means whereof he was indifted, and 
afterwards convifted, fhall not be bailed. The refoLutiou 
of all the judges, upon the queftion demanded by Ed¬ 
ward III. himfelf, as appears 27 Aff. 1. One indifted for 
burglary may be bailed. 29 Aff. 44. One indifted on fuf¬ 
picion of robbery was outlawed, and taken on the outlaw¬ 
ry, and brought writ of error, and, being brought to B.R. 
by habeas corpus, prayed to be bailed, and took two excep¬ 
tions to the indiftment: ift, That he was in prifon, and 
knew nothing of the outlawry. 2dly, That the charge is 
too general, and nobody profecutes; but per Roll Ch. J, 
