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er cases.

payment of what is due, to the ex- (And see Div. V. and tit. JURISDICtent of the penalty in the bail bond,

TION.) though less than the plaintiff's de- 46 In general a defendant cannot be mand. R. v. Sheriff of Middlesex. held to bail twice for the same 3 East, 604.

cause ; but if he be discharged out 40 In an action on the recognizance, of custody the first time for some

the court will stay the proceedings act for which the plaintiff is not anagainst both the bail, on payment of swerable ; e. g. an alteration in the the sum sworn to and costs, though warrant to arrest by the sheriff's ofless than the damages recovered, or ficer, without the plaintiff's knowlthan the sum named in the process. edge, in such case the defendant

Clarke v. Bradshaw. 1 East, 86. may be again held to bail for the S. P. although it appeared that the same cause of action. Housin v.

defendant, in the original action, Barrow. 6 Term Rep. 218. was gone abroad. Tranel v. Rivaz.

(See ARREST I.) 1 East, 91, n.

47 Aliter, if for default of the plain41 Where bailis taken under a judge's till in not declaring in time, and the order (in C. P.) that court, contra

second writ be for the same cause ry to the practice of K. B. holds of action in substance; though the each of them liable to double the first affidavit to hold to bail were sum ordered ; considering the order adapted to a demand in trover for as equivalent to the affidavit in oth- goods, and the second for money

Dahl v. Johnson. 1 Bos. had and received, upon a supposif. Pull. 205.

tion that the goods had been sold by 42 If a defendant be holden to bail the defendant for the plaintiff, and

under a judge's order, a material the money received to his use. In-
fact being coucealed from the judge lay v. Ellefsen. 3 East, 309.
which would probably have induced 48 Where a cause, in which the de-
him to refuse the order; the court fendant has been holden to bail, is
will on application discharge the referred to arbitration, and the are
defendant, even though there was a . bitrator awards to the plaintiff a
sufficient affidavit of debt, independ- sum exceeding 101. the defendant
ent of the order. Davis v. Chippen- may be holder to bail again in an
dale. 2 Bos. f. Pull. 282.


the award. Collins v. 43 Butthey will not discharge him from Powell.2 Term Rep. 756.

a detainer lodged against him by a 49 A defendant may be held to spethird person while in custody under cial bail in an action on a judgment the judge's order. 2 Bos. 8 Pull. for 101, for damages and costs; though 282.

the original debt alone were under 44 A defendant who lias been arrest- 101. Lewis v. Pottle. 4 Term Rep.

ed in a foreign country may be ar- 570. rested here again for the same 50 The defendant having been holden cause of action. Maule v. Murray. to bail, but afterwards discharged to l'erm Rep. 470.

on a common appearance, on ac(And see Div. V. & AFFIDAVIT V.) count of the plaintiff having declar43 The court of C. P. refused to dis- ed on a different cause of action

charge a defendant holden to bail from that mentioned in the writ for a debt contracted in this coun- and affidavit, the court of C. P. try, out of custody on a common ap- held that he might be holden to pearance, on an affidavit of his hav- bail again in an action on the judg. ing become a bankrupt in Ireland, ment. De-la-Cour y. Read. 2 H. and there obtained his certificate, Black. 278. but put him to plead. Quin v. 51 If a defendant, being arrested upKiefe. 2 H. Black. 553.

on process in K. B. give a warrant

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of attorney to confess judgment, again upon bills of exchange given and be afterwards holden to bail in by him before he was rendered, as C. B. in an action upon that judg. a collateral security for the damament, the court will discharge him ages and costs recovered against upon a common appearance. Salkeld

him in the former action, and upon V. Lands. 2 Bos. fPull. 416. agreement for a stay of execution 52 Where a defendant was arrested till default made in payment of the

on a contract the legality of which bills. Daniel v. Dodd. 8 East, was doubtful (under 7 G. 1, stat. 1, 334. c. 21, see AGREEMENTS 11.). and 59 Where the defendant in the action which might eventually subject the gave a cognovit for the debt and plaintiff to a penalty; the court of costs payable by seven instalments; C. P. discharged the defendant on and after the bail were fixed an act entering a common appearauce. passed for discharging insolvent Sunner v. Green. 1 I. Blackstone, debtors in custody for debts due at 301.

a certain day, prior to the bail be53 Where a certificated bankrupt had ing fixed, at which day three only

been holden to bail, for a debt due of the instalments were payable ; before his bankruptcy, the court of and afterwards the principal was C. P. refused to discharge him on discharged under the act, when onentering a common appearance, it ly two inore of the instalments, haq appearing that his certificate was become payable; yet held that the obtained by fraud. Vincent v. Bra- bail were liable for the whole condy. 2 H. Black. 1. (And see post demnation money; the entire debt,

qua debt, being due instanter, with 54 two actions be brought by the a stay of execution only for certain same plaintiff at the same time for portions at certain times. Shakescauses which may be joined in one peare v. Phillips. 8 East, 433. action, and the defendant is holden 60 Bail who are indemnified, being to bail in both, the court will com. sued upon the bail bond, file a bili pel the plaintiff' to consolidate them in equity for an injanction, suggestand to pay the costs of the applica- ing want of consideration for the otion. Cecil v. Brigges. 2 Term riginal debt; and an injunction is Rep. 639.

granted pro tempore on condition 55 If the plaintiff hold two defendants of paying the debt into court;

to bail on a joint writ, and declare which is done accordingly, and afagainst them severally, the court terwards the money is paid over : will set aside the proceedings. held that the bail were dainnified

Moss v. Birch. 5 Term Rep. 722. by such payment of money into 56 None can be holden to special bail court, after notice to the debtor,

in detinue or trover without a and no fund provided by him; and judge's order. Reg. Gen. 9 East, not merely from the time when the 323.

money was taken out of court upon 57 Bail above having been put in and dissolving the injunction. For one

exception entered in the vacation, who agrees to indemnify and save notice of justification for the first others harmless against a certain enday of the next term must be given gagement, is bound to secure them within four days after such excep- from incurring an expence, as it tion. Neillson v. K'ing9 East, runs on at the time, which falls up434.

on them by virtue of that engage58 A defendant arrested, held to bail, ment.

Sparks v. Martindale. and rendered, and afterwards su- East, 593. See also Turner v. Caperseded for want of being charged ry et al. voy East, 607. in execution, cannot be held to bail 61 A foreigner inay be held to bail in




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this country, in a suit brought a- 8 Bail bond cannot be assigned till gainst him by a person residing in after four days from the return of a foreign country, on a contract the writ, and where the last falls inade between the parties in their on a Sunday the party has all MouOwn country, where, by the laws of day to put in bail. Bullock v. Linthat country, the property of the coln. 2 Str. 914. debtor only is liable, and his person 4 Although the sheriff take a bail could not be arrested, either before bond on the stat. Hen. 6, yet that is or after judgment. Smith v. Spinol- at his peril, and the plaintiff shall ia. 2 Johns. Rep. 198.

not be thereby concluded. Wolfe 62. A defendant, in an action for a li- v. Collingwood. 1 Wils. 262.

bel, was held to bail for 1000 dol- 5 The sheriff shall be charged for lars, by order of a judge, on an affi- taking insufficient bail, and bond davit, stating, that the defendant may be assigned. Etherick v. Cowwas a transient person, and resided

1 Salke. 99. In 1 L. Raym. out of the state; the court, on mo- 425, it is that he is liable to an action, refused to discharge him on fil. tion as well as to amerciaments. ing a common appearance. Van 6 Proceedings were staid upon the Vechten v. Hopkins. 2 Johns. Rep. bail bringing in the principal mon298.

ey and interest, and costs into court. 63 Where a defendant is taken in cus- Proceedings on the bail bond must

tody, in vacation, and the bail are stay if there is not return of a cepi excepted to, they may justify before

corpus. .

3 Salk. 55. Butler v. a judge at his chambers. Fenn v. Rolls. Smith. 6 Johns. Rep. 124.

by Action on bail bond given in a 64 After bail had become fixed, and county palatine, on action

judgment against them on the re- brought there, must be brought in cognizance, the principal was dis- the court below, and not here, incharged under the insolvent act : less special circumstances warrant a ca. sa. was then issued against the Chesterton v. Middlehurst. 1 bail, who paid the debt, and then Burr. 642. brought an action against the prin- 8 In debt upon a bail bond by the cipal ; and it was held that he sheriffs of Middlesex, though they could not plead his discharge, as stile themselves sheriff's in the dethe debt was not made certain until clarations, and declare in the plu. after his discharge. Buel v. Gor- ral number, no objection can be takdon. 6 Johns. Rep. 126.

en on that account, unless the bond 85 The proof of a debt necessary to.

appears upon the record to be a bail hold to bail. 1 Dallas, 159.

bond. Sheriffs of Middlesex v. $6. The 12 G. 1, respecting proof of Barnes. 2 L. Raym. 1135.

debts to hold to bail, was not in force, 9 Action of debt, by the assignees of nor practiced under before the revo- a bail bond, must be brought in the lution. Ibid.

court where the original action was laid. Morris v. Rees.

2 Black. II. Of the Bail Bond. and Actions 838. 3 Wils. 348. and Tyalton v. thereon.

Brent. 3 Burr. 1923.

10 4 Ann. c. 16. Sheriff may assiga a 4 In actions upon bail bonds need bail bond out of the county, and the

not shew an arrest. Haley v. Fitz- action brought where he assignment gerald. 1 Str. 643.

was made. 2 Bail bond cannot be put in suit till Thus in an action on a bail bond by

after four days from the appear- the sheriff's assignee, the assignance-day of the return of the writ. ment may be stated to have been Bellis v. Mitford. 2 Blackstone, made out of the county in which 2002


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the arrest was made, and the bond 20 Equitable costs cannot be levied taken. In such case the venue may

out of the penalty of a recognizance be laid in the county in which the as- of bail. Baldwin v. Morgan. 2 signment is stated to have been Str. 826. made. Gregson y. Heather. 2 L. 21 But bail to the sheriff are liable

Raym. 1455. 2 Strange, 727. to the extent of the penalty in the 11 Surrender of defendant before re- bail bond, to satisfy the full debt

turn of writ no reason for staying and costs, although by 12 G. 1, c. proceedings upon the bail bond. 29, the bond cannot be taken in a Harrison and another, assignees of penalty of more than double the the sheriff, against Davies and anoth- sum sworn to. Michell y. Gibbons. er. 5 Burrowes, 2683.

1 Douglas, 330. 12 Bail bond cannot be assigned when 22 Where the recovery is for more

the original suit is out of court, for than the debt sworn to, the bail are want of declaring in time. Spar- liable only for that sum and the row v. Naylor and others. 2 Black. costs. Martin v. Moor. 2 Strange, 876.

922. 13 Bail bonds need not pursue the 23 Writ returnable out of term avoid

words of the return of process. bail bond taken on it, and that withShuttleworth v. Pilkington. 2 Str.

out plea.
Mills v. Bond.

1 Str. 1155.

399. 14 A bail bond taken by the name of 24 Form of recognizance given in K.

office, as solvend. eidem vicecomiti B. by a peeress, to answer an inet assignatis sufficient. Symes v. dictment for felony in the House of Oakes. Shepherd v. Oakes. Laven- Lords. R. v. Kingston, (Dutchess.)

der v. Oakes. 2 Strange, 893. Cowper, 284, n. 15 Under sheriff's clerk cannot as, 25 It is sufficient to state in the con

sign a bail bond. Kitson v. Fagg. dition the names of the parties, and 1 Strange, 60.

the time and place of the defend16 The sheriff may take a bail bond ant's appearance : if the cause of

upon an arrest under an attachment action be added, it may be rejected issued out of a court of law for a as surplusage. Owen v. contempt. If a man who has given Term Rep. 702. bail to the sheriff neglects to appear 26 Therefore where under an originat the return of the writ, the al writ in a plea of trespass on the court cannot prevent the party on case on promises, the sheriff took a whose account he was arrested bail bond conditioned for the defendfrom proceeding against the sheriff. ant's appearance in a plea of tresThe King v. Dawes. 1 L. Raym.

pass; it was held good. 6 l'erin 722. 2 Šalk. 608.

Rep. 702. 17 A bail bond taken in more than 27 A bail bond given to the sheriff of

double the sum sworn to by the Durham under a writ issued imme. plaintiff, is good. Norden v. Hors- diately from this court to him is ley. 2 Wils. 69.

not void ; though the Count Pala18 if a person disqualified from being tine might have interposed and

bail is put in and not excepted to, claimed his privilege. Jackson v. the plaintiff cannot proceed on the Hunter. 6 Term Rep. 71. bail bond as if no bail had been put 28 If it appear in a declaration by the in. Thompson v. Roubell. 2 Doug. assignee of the sheriff on a bail bond, 467, n.

that the bond is void by the provi19 If plaintiff accepts an assignment sions of the statute 23 H. 6. c. 9.

of a bail bond, he cannot have a rule the court on motion will arrest the for the sheriff to return the writ. judgment, after verdiet, against the Lord Brooke v. Stone. 1 Wilson, defendant, upon a plea of non est 223,

factum. 2 Tern Rep. 569.

29 If a declaration on a bail bond con- 36 Final judgment may be entered in

clude, “ whereby an action hath ac. an action on a bail bond without a crued to the plaintiff to demand writ of inquiry. Moody v. Pheasant. and have of the principal," (instead 2 Bos. 8 Pul. 146. of the bail,) and state non-payment 37 Though the proceedings against by the principal ; it is bad on a the bail should be such as cannot special demurrer, Morgan, As- be sent aside on the ground of irreg: sinnee of Sheriff v. Sargent, one, gʻc. ularity, yet the court, if the bail ap1 Bos. f. Pull. 58.

ply to their equitable jurisdiction, 30 A sheriff's bond, stated to have will in all cases stay proceedings been taken on the 4th November, on the bail bond, where the plainconditioned for the defendant's appear- tiff's, by their neglect, have forfeitance on the morrow of All Souls, ed their claim to institute proceed(scil. 30 Nov.] is void by the stat- ings against the bail.

3 Bos. 8 ute. 2 Term Rep. 569.

Pull. 222. (See Pigott v. Truste. 31 The court refused to order a bail 3 Bos. 8. Pull. 221. PRACTICE X.)

boud, given on an arrest in a penal 38 When the bail apply to stay pro· action, to be cancelled, on an affi- ceedings upon the bail bond, or a.

davit of the defendant that he was gainst the sheriff, they need not not the person who had incurred the swear to merits, though a trial has penalty; and they left him to bis been lost. Hardisty v. Storer. plea in abatement. Salter q. t. v. New Rep. 123.

Shergold. 3 Term Rep. 572. 39 Where two only of three joint con. 32 The court will not set aside pro- tractors are sued, the court will not

ceedings, and order the bail bond to stay proceedings on the bail bond, be delivered up, because a defend- unless the defendants will underant has been arrested on a special take not to plead in ahatement. capias, in which, as well as in the Govett v. Johnson. 2 Bos. 8. Pull. afřdavit to hold to bail the initials 465. only of his christian name were in- 40 If after a procedendo to carry

back serted. Jouell v, Coleman. 2 a cause to an inferior court; the Bos. f. Pull. 466.

plaintiff' recover, and then sue out (And see AMENDMENT II.)

a scire facias against the bail below, 33 The court of C. P. held that the and they remove the proceedings

sheriff' might sue on a bail bond in against them into the court of K. a different court from that in which B. by habeas corpus, that court will the original action was brought. award a procedendo in the suit aNewman f. al. v. Faucitt. 1 H. gainst the bail. Dixon v. Heslop, Black. 631.

et al. 6 Term Rep. 363. 3+ But the court of K. B. held, that 41 No bail bond taken in London or

an action on a bail bond, by the of- Middlesex under process returnable ficer to whom the bond was given, in C. P. on the first return of a terın, must be brought in the court where shall be put in snit until after the the original action was brought. 5th day, nor bonds taken elsewhere Donatty v. Barclay. 8 Term Hep. until after the 9th day in full term: 132.

nor if under process returnable on 33 Where a judgment against the prin- subsequent returns, until after four

cipal is set aside, upon condition days and eight days respectively, that the bail bond shall stand as a exclusive of the return day of the security, the bail, if sued upon the

process. Rey. Gen. 1 . Black. bovd, are entitled to a rule to plead, 525, 6. and a demand of plea, before judg. 42 Where the writ was to appear bement can be signed against them. fore the King wheresoerer he should Erans v. Surman. Neto Nep. 63. then be in England, and the sheriff

took a bail boud for the party's ap

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