Laws

Carrington v Ford, 4 Cranch Post Date: Fri, 1 Aug 2008 3:10:06 +0000
( N Y) 550; Boardman v Stone, Brayt ( Vt)35; Champion v Noyes, 2 Mas S 485; Niles v Field, 2 Met (Mas S) 328; Rawlinson v Guns- ton, 6 T R284; Filewood v Papple- well, 2 Wil S 61 Before AnsweRThe death of the principal discharges the bail only where such death occurs before the expiration of the time to answer in an action brought against the bai L Walsh v Schulz, 13 Daly ( N Y) 132 Consent Extending Time to AnsweRThe death of the defendant after the expiration of the time allowed by law to answer in an action brought against his bail does not release them notwith- standing that such time to answer had been extended by consent, and as so extended had not expired at the time of such deat H Gauntley v Wheeler, 4 Lan S ( N Y) 491 2 Watt v Reilly, 62 How Pr ( N Y Supreme Ct) 350 But this case seems to be in conflict with Butler v Bissel, i Root (Con N) 102; Fleming v Lord, i Root (Con N) 214; Ainsworth v Pea- body, i Root (Con N) 469; Lockwood v Jones, 7 Con N 439; Duncan v Tindall, 20 Ohio St 567 Reversal on Appea L Where bail are sued after a return of execution against defendant's person as not found, it is a defense to them that the judgment against defendant in the action in which such execution issued has been reversed on appea L Short v Hooker, 40 How Pr ( N Y Supreme Ct) 420 3 Phillips v Oliveer, 5 S R(Pa) 419; Nones v Gelbaud, n S R(Pa) 9; Hubbard v Shaler, 2 Day (Con N) 199; Culpeper Agricultural, etc, So C v Digges, 6 Ran d ( Va) 165 4 Say ward v Conant, n Mas S 146 But see Herrick v, Richardson, n Mas S 234 5 Anderson's Bail, 2 Chit 104, 18 E C L 265; Anonymous, Lofft 617; Ibbotson v Galway, 6 T R133; Bowerbank v, Payne, 2 Wash (U S) 464 But see Fuller v Davis, I Gray (Mas S) 612 peer or member of parliament,' or for any other reason is not liable to arrest, this discharges bai L 1 Plaintiff's Act S Matters arising from plaintiff's acts, as his negli- gence or irregularities in his proceedings, may discharge bai L 2 Anything Increasing Ris K The obligations of special bail are in the nature of those of sureties, always and properly recognized as being strictissimi juris, and discharged by anything that so affects the nature and extent of their contract as, by any reasonable probability, to increase risk or liabilit Y 3 1 Trinder v Shirley, i Doug L 45; Phillips v Wellesley, i Dow L Pr Ca S 9 See also Washburn v Phelps, 24 Vt 506; Bronson v Newberry, 2 Doug L (Mich) 38; White v Guest, 6 Blackf (Ind) 228; Dumont v Wright, 6 Blackf (Ind) 540; Lathrop v Briggs, 8 Co W ( N Y) 171 Compare Spring- field Card Mfg Co v West, I Cus H (Mas S) 388 A judgment upon which no execu- tion can lawfully issue against the body of the defendant operates ipso facto to discharge the bai L Oilman v Perkins, u N H 343 Under the Revised Statutes of New York, as females could not be impris- oned on civil process, their bail were entitled to a discharg e Dunham v Macomber, 5 Wen d ( N Y) 113 See also Holland v Bouldin, 4 TB Mo N (Ky) 149 Compare Jarvis v Giber- son, Dudley ( S Car) 223; Stever v Sornberger, 24 Wen d ( N Y) 275 2 Davison v Frost, 2 East 305; Hamilton v Taylor, 3 Yeates (Pa) 389; Boggs -v Chichester, 13 N J L 209 Imprisonment on Alias Executio N Although bail are fixed by a return of the execution non est inventus, yet if the creditor, after commencing a scire facias against the bail, take out an alias execution, and imprison the debt- or thereon, the bail are thereby dis- charge d Warren v Gilmore, n Cus H (Mas S) 15 Mere Irregularit Y Failure to have an undertaking given in an order of arrest marked "approved" by the judge does not release or relieve the sureties thereon from liabilit Y Keck v Gross (Brooklyn City Ct), 58 N Y St Rep 301, 26 N Y Supp, m I Neglect to Pay Defendant's Boar d Bail are discharged where the sheriff has released defendant from custody on plaintiff's refusal to pay the ex- penses of his board and keeping in advance, as required by How St Mich, 8960, after he has been taken on executio N Prior v Bodrie, 49 Mich 200 Where Irregular Notice of Bail was given, but the plaintiff did not sue the bond at the subsequent term, the bail were relieved on payment of costs, and justification, if require d Gelston v Swartwout, i John S Ca S ( N Y) 136 Discharge by Plaintiff Where the plaintiff's attorney, pending the suit, gave the bail a writing in which he engaged, on behalf of the plaintiff, that he should release and discharge the bail, it was held to be a discharg e Hughes -v Hollingsworth, i Murp H (N Car) 146 So where the plaintiff wrote a note to his attorney, directing him to dis- charge the bail, though there was no evidence that the note was shown to the attorne Y Howell v Hunt, Mill ConSt ( S Car) 321 3 Campau v Seeley, 30 Mich 57 Variance in Ad Damnu M Bail are discharged when the sum in the dec- laration is larger than in the writ Matthews v Armstrong, 4 Yerg (Tenn) 181 Variance between Declaration and Af- fidavit. If the cause of action in a declaration varies materially from that which is set forth in the affidavit to hold to bail, the bail will be discharged, even after verdict against the prin- cipa L Robeson v Thompson, 9 N J L 97 Amendment S If the writ is altered from debt to case, or the plaintiff de- clares in a different form of action from that in which bail is taken, the bail are discharge d Bryan v Brad- ley, i Tay L (N Car) 77*: Waples W Derrickson, I HarR(De L) 134; Mur- rel -v Halbert, I Bailey ( S Car) 238; West v Ratledge, 4 Dev (N Car) 31; Pell v Grigg, 4 Co W ( N Y)426 Depriving Bail of Bight to ArreSt So whatever proceedings are taken which deprive the bail, without their fault, of the right to arrest or surrender their principal, will discharge the M 1 Where Relief Discretionar Y Other cases in which the court has re- lieved or refused to relieve bail in the exercise of its discretion are cited in the not e 2 Entry of ExoneretuRThe formal and proper manner of discharging bail is by the entry of an exoneration ; 3 application therefor If, upon leave to amend, the plain- tiff adds a count upon a cause of ac- tion which could not be given in evi- dence upon the original declaration as set out in the writ, or which is not contained in the affidavit to hold to bail, the bail must be discharge d Hyer v Smith, 3 Cranch ( C C) 437 An increase of the ad damn um in a suit in which bail has been taken will discharge the bail unless made with his CONSENT Langley v Adams, 40 Me 125 In Vermont bail are not discharged by the filing of a new count, unless they are thereby subjected to a new or additional responsibility, or made liable for an increased su M Wright v Brownell, 3 Vt 435 Bail will not be discharged by leave to amend the declaration unless the amendment changes the cause of ac- tion from that upon which the bail was given, or where the amendment is of a defect existing at the time of entering bail, and which could have defeated the plaintiff's action but for such amendment. Carrington v Ford, 4 Cranch ( C C) 231 See also Payen v Hodgson, i Cranch ( C C) 508 See also article AMENDMENTS, Vo L I, P 676 1 On this principle, where an order of arrest was erroneously vacated the bail was entitled to an exoneratio N Baker Mfg Co v Fisher, 35 Ka N 2 Discretionar Y A motion to dis- charge bail is addressed to the sound discretion of the court, and its decision upon such motion cannot be assigned for erroRBruner v Ingraham, 2 111 556 See also Ex p Small, 25 Ala Not until Condition Broke N The court will not interpose its equitable power to relieve bail until the condition of the bail bond has been broke N Bird v Mabbett, i John S Ca S ( N Y) 31 Personation of Bai L The court may order a vacatur of bail if they have been personated; but if the persona- tion was felonious, such order will be stayed until the party has prosecuted the felon to effe Ct Renoard v Noble, 2 John S Ca S ( N Y) 293 Kule under New York Cod e Under N Y Code, 174, the Superior Court had discretionary power to exonerate bail after the lapse of more than twenty days from the commencement of suit against the M Gilbert v Bulk- ley, i Duer ( N Y) 668 Temporary Sta Y In a suit against bail in the Supreme Court, that court may grant relief to the bail although the original action was in another court, and may allow a temporary stay of proceedings to enable them to sur- render their principa L Barker v Russell, ii Barb ( N Y) 303 Error in writ Where, by mistake of the clerk, a writ issued for dol- lars when it should have been pounds, and the declaration was rightly ex- pressed, the court refused to give relief in equity to the bail, who were informed of the mistake before they executed the bail bond and had made no defenses at la W Carter v Cock- rill, 2 Munf ( Va)448 In New Hampshire Where a defend- ant, arrested on mesne process and car- ried before two justices on his appli- cation to be discharged, withdrew his application before his right to dis- charge was decided, and afterwards gave bail, it was held that the pro- ceeding before the two justices could not prevent an application to the court to discharge the bai L McCune v Rogers, 46 N H 43 Special Circumstance S Application for discharge of bail, granted in cases depending on peculiar circumstance S Edwards v Coleman, 6 TB Mo N (Ky) 573; State v Allen, 2 Humph (Tenn) 258 3 Strang v Barber, i John S Ca S ( N Y) 329; Parker v Tomlinson, 2 John S Ca S ( N Y) 220; Griffin v Moore, 2 Ga 331; McArthur v Mar- should be made before the liability of the bail has become fixe d 1 Where the exoneretur is entered or the bail is discharged, it is conclusive upon the parties and all intereste d 3 14 Surrender Right.

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In a case before Post Date: Fri, 1 Aug 2008 2:52:47 +0000
Bail generally have a right to surrender the principal in their own discharge, 3 but to this rule there are tin, i Gill (Md) 259; Boggs v Teackle, 5 Bin N (Pa) 332 The discharge of bail by surrender of the principal is not complete until an exoneretur has been entere d Dar- ling v Cutting, 57 Vt 218 Supersedea S Bail are not released from responsibility, nor defendant from arrest, until defendant has been actually discharged from custody by a supersedea S Bostwick v Wildey, 34 N Y SupeRCt 23 After Substitution of Sheriff When the sheriff takes insufficient bail, and on motion of the plaintiff he is substi- tuted for the bail, the latter is entitled, on motion, to have an exoneretur en- tered on the bail-piec e Smith v Den- nis, 3 Ala 248 Enactment of Statut e In White v Guest, 6 Blackf (Ind) 228, bail was held entitled to an exoneretur because of a statute abolishing imprisonment for Debt Exemption from Imprisonment. Whenever the principal, on his ap- pearance, cannot be imprisoned, and would be entitled to be instantly dis- charged, he is not required to appear, the bail are discharged, and an ex- oneretur should be entered upon the bail bon d McKay v Ray, 63 N Car 46 After Judgment against Bai L The court may release the bail, in a proper case, after judgment against them, for want of a plea, by opening the judg- ment and entering an exoneretuRCo M v Howard, n W N C (Pa) 81 1 Hissong v Hart, 39 N Y SupeR Ct 411; Welsh v Mead, 9 Phi La (Pa) 261 Review on Appea L Exoneration of bail after the time allowed by law is a matter resting in discretion, and not reviewable on appea L Mills v Hil- dreth, 81 N Y 91; Douglas v Haber- stro, 82 N Y 572; Wright v Coller, 35 Ohio St 131; Begole v Stimson, 39 Mich 288 Bail Excepted t O Bail excepted to, but whose na^ie was not stricken from the bail-piece, may apply for a dis- charg e Humphry v Leite, 4 BurR2107 Contra, Fulke v Bourke, I W B L 462 Exoneration Rescinde d Where an exoneretur has been entered upon a consent given by plaintiff acting under a mistake of facts, it maybe rescinded and stricken out on cause being shown therefoRFirth v Harris, 8 Dow L Pr Ca S 437 2 Washburn v Phelps, 24 Vt 506 3 Owston v Coates, 10 A d E L 193, 37 E C L 88, 3 JuR434; Gray v Fulsome, 7 Vt 452; Graves v Dyer, 22 Vt 614; Ruggles v Corey, 3 Con N 419; Coolidge v Gary, 14 Mas S 115; Jarvis v Alexander, i Cheves( S Car) 143 See also Davitt v Counsel, 2 Nott M ( S Car) 136 Also Dis- charge or Exoneration of Bail, supr A If the Principal is Confined in prison on a charge or conviction of a crime, he may be brought into court on habeas corpus, and surrendered in discharge of his bail, though the creditor cannot take him in executio N Biggnell v Forrest, 2 John S ( N Y) 482 After Exception S A principal may be surrendered in discharge of his bail, though exceptions to them have been entere d Anonymous, 9 N J L 25- Surrender of One of Tw O Where one becomes bail for two defendants, and after judgment surrendersone of them, who is discharged from custody by the plaintiff's order, it is no satisfaction of the judgment nor discharge of the bail, the plaintiff not having charged him in executio N Higginbotham v Browns, 4 Munf ( Va) 516 Voluntary SurrendeRThe principal cannot surrender himself in court, in discharge of his bail, against the con- sent of the bail and of the creditoRGushing v Breck, 10 N H i N Con- tra, Dick v Stoker, i Dev (N Car) 91 Pendency of Action Necessar Y No ef- fectual surrender of a principal can be made by bail in court, unless an action is pending against the principal or the bai L Sloan v Bryant, 28 N H When Mad e Such surrender may be made any time before the liability of the bail is fixe d 8 The time of bail to surrender their Surrender to be Kept Goo d Although the bail may surrender their principal, and the surrender be entered of rec- ord at the term when judgment is obtained, yet if the plaintiff does not pray the committal of the principal in execution, and the latter should after- wards go at large, this is not a dis- charge of such principal from execu- tion by the plaintiff Howzer v Del- linger, i Ire d (N Car) 475 1 Bail who have been Excepted to and fail to justify, and hence are no longer liable to the plaintiff, but only to the sheriff, are not entitled to surrender the principal to relieve themselves from such liabilit Y Hardwick v Bluck, 7 T R293; Haberstro v Bedford, 118 N Y 187 See also Neresheimer v Bowe, u Daly ( N Y) 301; Douglas v Warren, 58 How Pr ( N Y Supreme Ct) 264 Bail Belo W Bail below have no right to surrender defendant in their discharge, but can only put in bail abov e Berchere v Colson, 2 Str A 876; Newton v Lewis, 8 T R457, note; Hamilton v Wilson, i East 383; Bobyshall v Oppenheimer, 4 Wash (U S) 317 See also Pepoon v Mooney, I Mill ConSt ( S Car) 314; Stevens v Meeds, i Mill ConSt ( S Car) 318 Surrender by Plaintiff's Attorne Y Where the plaintiff's attorney ordered the officer to take a particular person as bail, on the defendant's promise to put in sufficient bail the next day, which he failed to fulfil, and the bail that was taken became insolvent, the attorney, after having filed common bail, was allowed to file special bail for the defendant in order to surrender his body for his own protection, no objection being interpose d Gilchrist v Van Wagenen, I Ca I ( N Y) 499 After a Decree Entered on a summary process, it is too late for the bail to the sheriff to enter himself as special bail and surrender his principa L Atkinson v Martin, I Brev ( S Car) 481 Bail on Appea L Bail in error have no right to surrender their principa L Southcote v Braithwaite, I T R624 Bail Indemnifie d Where the bail has been indemnified against loss he will not be released on his application to surrender his principal unless it be shown that the person who indemnified him is irresponsibl e Mills v Hil- dreth, 17 Hun ( N Y) 297 Surrender Unnecessar Y Where de- fendant is not liable to imprisonment on a judgment in the action, bail are not required to surrender him in order to discharge themselves from liabilit Y Beers v Haughton, i McLean (U S) 226; Newton v Tibbatt, 7 Ark 150 Imprisonment of Principa L Where surrender is rendered impossible by the act of the law bail will be relieved, if the plaintiff has lost nothing by the omission of any act the bail could per- for M Where the condition of a bond was that defendant should surrender himself in a specified contingency, and at the time such contingency oc- curred he was in jail awaiting removal to state prison to serve out a sen- tence for crime, and no surrender was made held, that these facts did not ex- cuse a surrender, and that he should have been surrendered to the sheriff, who could then have taken him in execution after his imprisonment ex- pire d Steelman v Mattix, 38 N J L 247 See Turner v Bartlett, 109 Mas S 503 2 Ruggles v Corey, 3 Con N 421 Before Return Da Y A defendant who has been arrested and has given a bail bond may surrender himself to the sheriff at any time before the return day of the process, and if the sheriff accepts such surrender the bail are discharge d Dalbey v Lowenstein, 34 N J L 465; Florence v Shumar, 34 N J L 455 After Judgment of Filiation, in a bastardy proceeding, it is too late for the sureties to surrender the defend- ant in their discharg e Corson v Dunlap, 80 Me 354 Surrender in Justice's Court. In a case before a justice of the peace, bail can surrender his principal only while the court is in sessio N He cannot do it after adjournment, even though that should take place before the expiration of the two hours prescribed by statut e Converse v Washburn, 43 Vt 129 And when bail surrender the principal in a justice's court, the How Mad e The usual mode of surrender is the delivery of the principal to the custody of the sheriff of the county in which he was arrested, 2 but where a statute prescribes a particular justice may, by parol, order him into the custody of an officer, who may detain him while the court is open; but the officer cannot detain him after the court is adjourned, unless he have a mittimus from the justic e Abells v Chi Pman, I Tyler ( Vt) 377 After Default of Bai L Bail may sur- render their principal any time before final judgment against them, and not- withstanding their default has been taken upon writs of scire facias brought against the M Norcross v Crabtree, 161 Mas S 55 Sheriff as Bai L A sheriff, sued as bail after return of execution against the defendant unsatisfied, may sur- render the defendant while the action against him is pending, and be re- leased on payment of cost S Brady v Brundage, 2 Thom P C ( N Y) 621 Before End of Ter M Bail may sur- render their principal to the sheriff at any time before the end of the term to which service of effective process against them has been returned; and such surrender, even after the c A s A has been returned and the bail bond assigned to the plaintiff, may be made without any previous order of court; though, if made after the return of the c A s A^an order is necessary to confirm hand give it effe Ct Glover v Gomillion, 2 Rich ( S Car) 554; Breeze v Elmore, 4 Rich ( S Car) 436 In Michigan a special bail's right to surrender his principal expires eight days from the commencement of suit upon recognizance, after timely and regular issue and return " not found " of body executio N Lyman v Giddey, 96 Mich 401 New York In Ward v Moser, 19 Wen d ( N Y) 153, it was held that in an action on a recognizance of bail, put in in a Court of Common Pleas, and prosecuted in the Supreme Court, the time of surrender was governed by the practice of the latter court.

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And where the defendant Post Date: Fri, 1 Aug 2008 2:41:42 +0000
1 Bankruptcy of the principal pend- ing the action is sufficient caus e Maude v Jowett, 3 East 145; Stead v Yates, 3 M p 272; Waugh v Ash- ford, I Scott 167; Offley v Dickins, 6 M S 348; Harris v Alcock, 2 TyR418; Glendining v Robinson, i Taunt 320; Ruston v Green, 2 Dow L Pr Ca S 617 Or the principal having brought a writ of erroRCapron v Archer, i BurR340 Imprisonment of Principa L Where the defendant is imprisoned on a criminal charge, or is in jail under civil process, either has been considered good cause for enlarging the time of his bail to surrender hi M Campbell v Ackland, 3 TyR230; Ashmore v Fletcher, 13 Price 523; Hodgson z Temple, 5 Taunt 503; Rexf Fearne, I Marsh 170, note; Rouch v Boucher, 10 Price 104; Tinson v White, I Price P C 156 Contra, Joyce v Pratt, 6 Bin g 377, 19 E C L 106 Lunac Y It is not ground for extend- ing time to surrender the principal that he is a lunati C Cock v Bell, 13 East 355 Sicknes S Or in such a condition of health that removal would endanger his lif e Wynn v Petty, 4 East 102; Winstanley v Gaitskell, 6 East 389; Warrington v Sammell, 10 Moore 170; 17 E C L 138 2 Mainwaring v Milner, L R4 Q b 149, 38 L J QB 49 Exhibiting Bail-piec e And such sur- render seems to be valid, though the bail do not exhibit the bail-piece to the sheriff, nor any other written evi- dence of their being bail, if the sur- render be made in the county where they were entered as special bail in open court, and the fact was known to the sheriff Evans v Freeland, 3 Munf ( Va) 119 Bona-fide Attempt. Where a bond was conditioned for the appearance of the debtor at a specified term of court, to present a petition for his dis- charge in insolvency, or in default thereof his surrender to the county jail, and the debtor by a mistake ap- peared too late at court, and then sur- rendered himself at the jail held, an honest attempt to comply with the condition, and that the bond was dis- charged thereb Y Greenvvaldt v Kraus, 148 Pa St 517 ; Saunders v Quigg, 112 Pa St 546 Principal Imprisone d Where defend- ant is in criminal custody the court mode of surrender it must be followed or the bail remain liabl e 1 Arrest of Principa L For the purpose of surrendering him, bail have a right to arrest the principal at any time or place, or in any juris- dictio N 2 will not interfere summarily for the purpose of bringing him up to be surrendere d Grant v Fagan, 4 East 189; Currie v Kinnear, iB p 23; Bennett v Kinnear, 3 Moore 259; Folkein v Critero, 13 East 457 Writs of habeas corpus have been allowed for the purpose of bringing up a prisoner that he might be sur- rendere d Sharp -v Sheriff, 7 T R222; Taylor's Case, 3 East 232; Daniel v Thompson, 15 East 78 The sureties in the bail bond of a person thereafter sentenced to state prison may escape liability by put- ting in special bail, and then sur- rendering the principal by means of habeas corpus if he is still in jail, or by motion if he be in priso N Atkin- son v Prine, 46 N J L 28 United States Court S Where a cause is removed from a state court to a United States court, a surrender of defendant by his bail should be made in open court, according to the practice of the United States court, and not of the state court. And where the defendant has been surrendered by commitment to jail according to the state practice, a writ of habeas corpus will be granted to bring him into court for the purpose of surrendeRCorn- stock v Seagraves, I Story (U S) 1 Doyen v Leavitt, 76 Me 247; Cozine v Walter, 55 N Y 304 Order of Court.

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Contra, Brookes v Warren, 2 Post Date: Fri, 1 Aug 2008 2:22:17 +0000
Where it is required by statute that an order be obtained to commit defendant to the custody of the sheriff, and that upon the sheriff's cer- tificate that defendant is in custody, and on notice to plaintiff, an order exonerating bail may be made held, that until this is done bail remain liabl e Cozine v Walter, 55 N Y Bail in Bastardy Proceedings Maine The sureties on a bastardy bond are not discharged unless a surrender is made according to the statute, and are not discharged by surrender of defendant to an officer out of court instead of to the court while in session, as require d Doyen v Leavitt, 76 Me 247 2 Smith v Catlett, I Cranch ( C C) 56; Sharpless v Knowles, 2 Cranch ( C C) 129; State v Mahon, 3 HarR(De L) 568; Nicolls v Ingersoll, 2 John S ( N Y) 145; Pease v Burt, 3 Day (Con N) 485; Parker v Bidwell, 3 Con N 84; Ruggles v Corey, 3 Con N 421 ; Co M v Brickett, 8 Pic K (Mas S) 138; Johnson v Tompkins, i Bald W (U S) 578; Turner v Wilson, 49 Ind 581; Ex p Gibbons, I At K 238; Holsey v Tre- villo, 6 Watt S (Pa) 402; Broome v Hurst, 4 Yeates (Pa) 123; Respublica v Gaoler, 2 Yeates (Pa) 263; Johnson v Boyer, 3 Watt S (Pa) 378; Koch v Coot S 43 Mich 30; Rex v Huges, 3 C p' 373, 14 E C L 355; Payne v Spencer, 6 M S 237; Pyewell v Stow, 3 Taunt 425; Sheers v Brooks, While attending court. Broome v Hurst, 4 Yeates (Pa) 123 Or on Sunda Y Worthen v Prescott, 60 Vt 68 (obiter). Contra, Brookes v Warren, 2 W B L 1273 May break an outer dooRNicolls v Ingersoll, 7 John S ( N Y) 145; Read v Case, 4 Con N 166 Contra, may break a door, but not an outer on e Sheers v Brooks, 2 H B L 120 In Custody of Foreign Bai L Bail may pursue their principal into another jurisdiction, and take him out of the custody cf those who have subse- quently become his bail there, and thus prevent the latter from surren- dering him in such jurisdictio N Sharpless v Knowles, 2 Cranch ( C C) 129 May Deputize Other S The bail, for the purpose of surrendering defend- ant, may deputize others to exercise their power of arrest and surrendeRBoardman v Fowler, I John S Ca S ( N Y) 413; Nicolls v Ingersoll, 7 John S ( N Y) 145; State v Mahon, 3 HarR(De L) 568; Co M v Brickett, 8 Pic K (Mas S) 138 Executors of Bai L The executors of bail may arrest and surrender a de- fendant in release of the liability of their testatoRMeddowscroft v Sut- ton, iB p 62 Bail Below cannot ArreSt Bail to the sheriff have no right to take their principal into custod Y Rex z/ Huges, Completio N Surrender is not complete until notice thereof has been duly given and the costs granted are pai d 1 And where'a principal is surrendered in court in discharge of his bail, it is per- haps always necessary that it be entered of recor d* 15 Liability of Principa L The principal is bound to fully indemnify the bail for all loss, damage, or expense sustained or incurred in his behalf 3 Where a judgment is obtained against bail, and the principal is afterwards discharged under an insolvent law, and the bail then pay the debt on a capias satis faciendum against them, they may recover indemnity of the principal, his discharge not being a baR4 Civil and Criminal Alik e The rights of bail to arrest and surrender the principal in their own discharge are the same in civil and in criminal case S Harp v Osgood, 2 Hill ( N Y) 218; Taylor v Taintor, i6Wal L (U S)366 Imprisonment in Another Stat e Where an officer of the army had been tried by a court-martial for a misde- meanor, his bail, in an action in another state, were held not to be entitled to his body until the sentence of the court- martial should be complied wit H U S v Bishop, 3 Yeates (Pa) 37 1 Anonymous, I Chit 128; Rex v London, I Price 338; Lewis v Grim- ston, i JuR514, 5 Dow L Pr Ca Syn; Thorne v Hutchinson, 3B C 112, 10 E C L 24; Horn v Whitcombe, 5 Dow L Pr Ca S 328; Cozine v Walter, 55 N Y 304 But see Byrne v Agui- lar, 3 East 306 2 See Chase v Holton, n Vt 347 Entry of SurrendeRA prisoner be- ing surrendered in discharge of his bail, and an entry thereof made held, that such entry could not be rescinded at a subsequent day in the same ter M Underwood v McLaurin, 4 Jones ( N Car) 17 3 Fisher v Fallons, 5 Es P 171; Parsons v Briddock, 2 Ver N 608; Armstrong S Farmers' Bank, 130 Ind 508 See also Smith -v Kiser, 98 N CaR379 Lien on Lan d Bail do not acquire any lien in equity on a tract of land for indemnity, though the debt they have paid was for the price which the principal engaged to pay therefoRAdair v Campbell, 4 Bibb(Ky) 13 3 Ency C P I Pr 13 i 93 Subrogatio N An agreement be- tween the payee of a promissory note and A, one of the signers, by which A is to be discharged from all further liability thereon, will not be enforced in equity after the payee has, by order of court, assigned the judgment ren- dered on said note to one who has paid the amount as bail for one of the signers of the note who had signed it as suret Y In such case the bail, standing in the place of his principal, may maintain an action in the name of the payee against all the principal debtor S Pierson v Catlin, 3 Vt 272 Where judgment has been obtained against several defendants, and the bail of one of them, on scire facias, has been compelled to pay the entire debt, the County Court, in Vermont, have no- power to order a subrogation of the bails to the rights of the creditor; and, if such subrogation be ordered, the bail can, at most, acquire only those rights which the creditor had, and must take the judgment subject to- any agreement as to its collection which the creditor may have made with either of the other defendants; but the only remedy of such other de- fendants to enforce compliance by the bail with any agreement so made by the creditor, would be in chancer Y Pierson v Catlin, 18 Vt 77 4 Buel v Gordon, 6 John S ( N Y) 126 "The debt was not made cer- tain until after the defendant's dis- charg e" 5 4 Blackstone Co M p 297; High- more on Bail, introduction; Barbour who become security for the appearance of the accused in court.

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Morgan, i BulSt 84; Rex Post Date: Fri, 1 Aug 2008 2:07:53 +0000
1 It is supposed to be derived from the French, and to mean guardian, keeper, or jaileR2 In the eyes of the law bail are re- garded as the keepers of their principal, and are said to have him always on a string, which they may pull whenever they please and render him in their discharg e 3 The obligation or security given when a person accused is released from custody is also called bail; 4 but the usual term applied to it is bail bond 5 or recognizanc e A Recognizance is an obligation of record entered into before some court or magistrate duly authorized to take it, with con- dition to do some particular act the most usual condition in criminal cases being the appearance of the accused for tria L 6 Criminal Law (3d e d) 575; State v McNab, 20 N H 161 1 Bouvier Law Diet ; Abbott Law Diet; Burrill Law Diet 2 Highmore on Bail, introductio N 3 Anonymous, 6 Mo d 231; Haw K P C, b K 2, C 15, 33 4 Wharton Law Lexicon; Rapalje Lawrence Law Diet 5 Bond and Recognizance Compare d "A recognizance differs from a bond in this, that while the latter, which is attested by the signature and seal of the obligor, creates a fresh or new ob- ligation, the former is an acknowl- edgment on record of an existing debt, with condition to be void on perform- ance of the thing stipulated and at- tested by the record of the court alone, and not by the obligor's signature and sea L" State v McGuire, 42 Min N 29 "A recognizance is * * a bond in the strict sense of the wor d Noth- ing is more common than to speak of recognizance as a bon d" New Haven v Rogers, 32 Con N 224 In Oregon a bail bond is like a recog- nizance at common la W Colvig v Klamath County, 16 Oregon 244 Alike in Legal Effe Ct Rev Stat U S, 1014, provides for the release on bail of one who has committed a crime against the United State S Held, that though the United States statute had reference to the giving of a recognizance rather than a bond, as a means of securing the offender, yet a territorial act providing for a bail bond in no way conflicted there- with, and a bond given by an offender against the laws of the United States was valid and could be enforce d Swan v U S, 3 Wyoming 150 A bond to the people in the usual form, signed by the parties and ap- proved by two justices of the peace, is a sufficient recognizance of bail under the Colorado statut e People v Mel- lor, 2 Colo705 6 People v Kane, 4 De N ( N Y) 531; People -v Felton, 36 Barb ( N Y) 433; State v Walker, 56 N H 176; State -v Dowd, 43 N H 455; Morrow v State, 5 Ka N 563; Shattuck v Peo- ple, 5 111 479; Banta v People, 53 111 434; Warner S Howard, 121 Mas S 82; State v Howley, 73 Me 552; Kearns v State, 3 Blatchf (Ind) 334; Vierling v State, 33 Ind 218; State v Crip- pen, I Ohio St 399; Pace v State, 25 Mis S 54; State v Randolph, 22 Mo 478 The condition of a recognizance is for the appearance of the accused, and bail are released if he appear to an- swer the charg e Anonymous, 6 Mo d 231 To be Substantially Set Forth in Writ- in g A recognizance must contain all the essential parts of the obligation and condition, and none of the ma- terial parts of either can be supplied by oral evidence; and although a statute provides that recognizances need not be entered on the journal of the court, but may be taken in open court and attested by the clerk, this does not dispense with a writing set- ting forth all the essential requisites of a recognizanc e A mere memo- randum by the clerk on a loose sheet of paper, stating that a recognizance had been entered into in open court by the parties, but not setting out all the es- sential parts of a recognizance, is not a recognizance, and is invali d State v Crippen, i Ohio St 399 Seealso Peo- ple v Felton, 36 Barb ( N Y) 433 2 Power to Take Bail A IN GENERA L The power to take bail is incident to the power to hear and determine, 1 or to com- mit ; 2 and courts or magistrates having such power may take bai L 3 Such power cannot be delegate d 4 A Farol Recognizance is of no valid- it Y Bloomington v Heiland, 67 111 278 A Statutory Undertaking for Bail is not a recognizance, but a simple con- tract to pay money on certain con- dition S It has none of the qualities of a recognizance, and the rules applica- ble thereto do not apply to it. State v Hays, 2 Oregon 314 See also Hicks v State, 3 Ark 313 1 People v Van Home, 8 Barb N Y) 158; People v Shattuck, 6 Abb N Ca S ( N Y SupeRCt) 33; Young v Shaw, i d Chi P ( Vt) 224 Where a felony is committed in a county other than that in which the arrest is made, a magistrate cannot take temporary bail for the appear- ance of the accused before himself Co M v Salyer, 8 Bush (Ky) 461 2 Ex p Allen, 3 N M 35; Tyler v Greenlaw, 5 Ran d ( Va) 711 Con- tra, People v Kennedy, 2 P Ark CR Rep ( N Y) 312 See also State v Wofford, 10 Smed M (Mis S) 626 3 People v Jefferds, 5 P Ark CR Rep ( N Y) 518; Lynch v People, 38 111 494; State v Grant, 10 Min N 39; Ex p GilchriSt 4 McCord ( S Car) 233; Co M v Salyer, 8 Bush (Ky) 461; State v Abbot, R M Charlt ( Ga) 244; Ex p Chancy, 8 Ala 424; Callahan v State, 60 Ala 65; U S v Stewart, 2 Bal L (U S) 343; Rex i. Morgan, i BulSt 84; Rex v Lord Baltimore, 4 BurR2179; Reg v Bar- tholemy, Dears C C 60 In general, a court having power to examine into an accusation has power to take bai L Thomas v State, 12 Tex App 416; State v Edney, 4 Dev B (N Car) 378 After Convictio N Courts having power to admit to bail may do so even after convictio N State v Sat- terwhite, 20 S Car 536; State v Ab- bot, R M Charlt ( Ga) 244; Ex p Campbell, 20 Ala 89; Davis v State, 6 How (Mis S) 399 After Final Commitment.

Autor of the post: Undefined

The court has power Post Date: Fri, 1 Aug 2008 1:55:27 +0000
After final commitment in execution no power to admit to bail exists in either the court committing or any other court unless a statute authorizes it. Rexz Brooke, 2 T R190; Crosby's Case, 3 Wil S 185; Matter of Percy, 2 Daly ( N Y) 530; Corbett v State, 24 Ga 392- Statutes exist in England and in some states allowing bail to be taken in such cases where justice demands it pending a review of a conviction, i Bishop New Cri M Pro, 254; Church on Habeas Corpus, 319; People v Lohman, 2 Barb ( N Y) 450; People v Folmsbee, 60 Barb ( N Y) 480; Miller v State, 15 Fla 575 See Dempsey v People, 5 P Ark CR Rep ( N Y) 85 Contempt. The court has power to admit to bail a person imprisoned for contempt, pending investigation of the question as to his further imprison- ment, where imprisonment for con- tempt is not regulated by statut e Kingsbery v Ryan, 92 Ga 108 See also Baldwin v State, 126 Ind 24 A Jailer cannot take bail in a crimi- nal cas e Co M v Lee, 3 J J Marsh (Ky) 698 4 Butler v Foster, 14 Ala 323; An- tonez v State, 26 Ala 81; Dugan v Co M, 6 Bush (Ky) 305; Morrow v State, 5 Ka N 563; Morrow v State, 6 Ka N 222; Street v State, 43 Mis S I But see State v Edney, 2 WinSt E Q (N Car) 71; State v Sewall, 3 La An N 575; State v Wyatt, 6 La An N 701 Bail taken by an officer having gen- eral authority to let to bail is valid, although he be not the officer before whom the application for bail is pend- ing, where the offender voluntarily appears before him, and the bail so taken is subsequently adopted by the officer before whom the application for bail is pendin g People v Leg- gett, 5 Barb ( N Y) 360 Only Public Offense S The power to admit to bail is, in general, given only in case of offenses against the public, and it is doubtful if the mayor of a town can admit to bail a person charged with a breach of a town or- dinanc e Cauthron v State, 43 Ark 128 Collateral Attac K The official char- acter of an officer who took a recog- nizance cannot be questioned collater- all Y Compton v People, 86 111 176; People v Meacham, 74 111 292 b touRTS OF RECOR d Every common-law court of record has power to take bail, 1 and so have superior courts of original jurisdictio N 2 Where the court is in session, bail should be taken by the court, and not by a judge at chamber S 3 1 Young v Shaw, I d Chi P ( Vt) 224; People v Van Home, 8 Barb ( N Y) 158 See also Street v State, 43 Miss, i ; Estes v State, 2 Humph (Tenn) 496 2 State v Dawson, 38 Ohio i ; Pow- ell v State, 15 Ohio 579; State v How- ley, 73 Me 552; State v Wenzel, 77 Ind 428 Exclusive Jurisdictio N Where a par- ticular court has exclusive jurisdiction of a certain offense, no othercourt can admit to bail a person accused thereof People v Dutcher, 83 N Y 240 Power Exhauste d After a court which has power to admit to bail, in- stead of doing so, has bound the ac- cused over to another court and certi- fied the proceedings to such court, it has no power to admit him to bai L Mills v Chamber S 91 Mich 521 In Alabama a probate judge has power to admit to bail in cases of capital felony, under the act approved March 20, 1873 Ex p Keeling, 50 Ala 474 In Missouri, when a person has been indicted and arrested for a bailable offense, only the judge of the court wherein the indictment is pending has authority to admit him to bail without issuing a writ of habeas corpu S State v Watson, 54 Mo App 416, distin- guishing State v Nelson, 28 Mo 13; State v Ferguson, 58 Mo 409; State v McElhaney, 20 Mo App 584; State v Woolery, 39 Mo 525 Indiana A judge of the Circuit Court may take bail returnable to a Cir- cuit Court held in a different county from that in which it is take N Paine v State, 7 Blackf (Ind) 206 On an application for bail on habeas corpus the judge may examine wit- nesses, ascertain the facts, and admit to bail or discharg e State v BeSt 7 Blackf (Ind)6 N A jndge at chambers may bail for a crime committed during the sitting of the Circuit Court.

Autor of the post: Undefined

The police court Post Date: Fri, 1 Aug 2008 1:39:03 +0000
Crandall v State, 6 Blackf (Ind) 284 New York The Supreme Court has the same power as the King's Bench in England, and may let to bail in all case S Ex p Taylor, 5 Co W ( N Y) 39; People v Perry, 8 Abb Pr, N S ( N Y Supreme Ct) 27 The Court of Oyer and Terminer or Court of Sessions in any county has power to let to bail in all cases before indictment. People v Van Home, 8 Barb ( N Y) 158 A person arrested for a crime pun- ishable by imprisonment in state pris- on can only be bailed in the county where the warrant is issue d He can- not be bailed in the county where ar- rested if a different county from that in which the warrant is issue d Clark v Cleveland, 6 Hill ( N Y) 344 Ver Mont Where a warrant of ar- rest commands the officer to arrest the person accused, and to keep him to ap- pear at the next term of court, such arrest and keeping are for the purpose of trial, and the accused may be ad- mitted to bail by a judge of the Su- preme or the County Court under the Vermont statut e In re Durant, 60 Vt 176 Police Court. The police court of the city of Detroit has no power to ad- mit a prisoner to bail after he is held for trial and the papers have been certified to the recorder's court.

Autor of the post: Undefined

In State v Ran- dolph Post Date: Fri, 1 Aug 2008 1:19:28 +0000
Mills v Chambers, 91 Mich 521 3 Babcock's Case, 2 Abb Pr, N S ( N Y Supreme Ct) 204; People v Clews, 77 N Y 39 See also Co M v Littell, i A K Marsh (Ky) 566; Todd v State, i Mo 566 When the statute authorizes a judge at chambers to determine all matters where a jury is not required held, that such a judge can admit to bail one charged with a criminal offens e Ains- worth v Territory, 3 Wash 270 Second Applicatio N After a court or magistrate having authority to do so has acted on an application for bail, no other judge should pass on the ques- tion, unless it be shown that the first application was disposed of arbitrarily and not on the merit S People v Restell, 3 How Pr ( N Y Supreme Ct) 251; People -v McLeod, 25 Wen d ( N Y) 483; Ex p Jones, 20 Ark 9; Ex p Osborn, 24 Ark 185; Ex p Is- bell, II Nev 295 After Reversa L Where a conviction C JUSTICES OF THE PEAC e Where justices of the peace have power to act as examining magistrates, they can, in general, take bail for all bailable offense S 1 Where power to take bail is conferred on the magistrate by statute, it is limited to the cases therein specified, and jurisdiction must appear from the record; it is not presume d 2 d COMMISSIONER S A United States Commissioner has the same is reversed on appeal and the case is remanded to the lower court for a new trial, the lower court has power to bail the accused to appear on the new tria L Brewer v State, 6 Lea (Tenn) 198 1 Hamlett v Co M, 3 Gratt ( Va) 82; Tyler v Greenlaw, 5 Ran d ( Va) 711; State Treasurer v Rice, II Vt 339; Barton v Keith, 2 Hill ( S Car) 537; Darling v Hubbell, 9 Con N 350; Potter v Kingsbury, 4 Day (Con N) 98 ; Sturges v Sherwood, 15 Con N 149; People v Duffy, 5 Barb ( N v) 205; People v Brown, 23 Wen d ( N Y) 47; People v Mack, i P Ark CR Rep ( N Y) 567; Hostetter v Co M, 12B Mo N (Ky) i; Co M v Otis, 16 Mas S 198; Co M v Cheney, 6 Mas S 347; Co M v Canada, 13 Pic K (Mas S) 86; Thomm v State, 35 Ark 327; Mc- Farlan v People, 13 111 9 See also State v Hill, 3 Ire d (N Car) 398 Holtzclaw v State, 4 Ind 597 Where Punishment Discretionar Y Where by statute a justice of the peace has power to admit to bail for offenses not punishable in a specified manner, he has power so to do if the offense is so punishable or not, in the discretion of the court; but he cannot do so if the specified punishment must be inflicted on conviction, the court having no discretion in the mat- Ter State v Toups, 44 La An N 905 Upon Adjournment. Where the stat- ute authorized a justice of the peace "to take bail for the appearance of the accused on the day appointed for trial," and also " to adjourn a trial or examination, and take bail for the appearance of the accused for further examination" held, that such justice had power to take bail upon an ad- journment for tria L Lewis v People, 23 111 App 28 Declining Jurisdictio N Where a jus- tice of the peace has authority to try a person brought before him on an ac- cusation made, he cannot decline to do so and take bail for such person's appearance before another court; and a recognizance so taken is voi d Thomm v State, 35 Ark 327 Peace OfficeRA person acting as a peace officer may admit a person ac- cused of crime to bai L Doughty v State, 33 Tex I 2 State v Smith, 2 Me 62 ; State v Hartwell, 35 Me 129; Dodge v, Kel- lock, 13 Me 136; Treasurer v Merrill, 14 Vt 64; State v Hard, 53 Vt 568; Co M v Loveridge, n Mas S 337; Bridge v Ford, 4 Mas S 641; Knowles v Davis, 2 Allen (Mas S) 61; Brayman v Whitcomb, 134 Mas S 525; Co M v Cheney, 6 Mas S 347; Holcomb v State, 6 Lea (Tenn) 668; Gachen- heimer v State, 28 Ind 91 See also State v Whitaker, 19 La An N 142; State v Collins, 19 La An N 145; State v McGunnegle, 3 Mo 402; State v Ferguson, 50 Mo 409; State v An- drews, 28 Mo 14; Barton v Keith, 2 Hill ( S Car) 537; State v Hufford, 28 Iowa 391 Compare People v Mack, i P Ark CR Rep ( N Y) 567 Pending Examinatio N Where the statute provided that a magistrate might admit to bail persons brought before him, but also provided that he should proceed as soon as might be to examine the charge against them held, that he could not admit to bail un- til after the examination had been con- clude d State v Jones, 100 N Car 438 Upon linding OveRUnder authority to bind over where there is probable cause for believing the accused guilty, a recognizance is void which shows merely that "there is good cause to suspect" him guilt Y State v Hart- well, 35 Me 129 Discharge after Bail Take N After a magistrate has taken bail for the ap- pearance of the accused, his power is exhausted ; he cannot subsequently discharge the accuse d Sandrock v Knop, 34 How Pr ( N Y C P I) 191 After Commitment. In State v Ran- dolph, 26 Mo 213, the justice's au- thority was likewise held to be ex- hausted after issuing his warrant of power to take bail as a state magistrate, but no more or greater power S 1 A state Commissioner has only the power conferred upon him by statut e 2 Constitutionalit Y The legislature may constitutionally confer upon a commissioner the power to take bail, even if it be deemed a judicial poweR3 e CLERK OF COURT.

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In re Bail Comr's, 85 Post Date: Fri, 1 Aug 2008 1:02:14 +0000
A court has no authority except by statute 4 to deputize its clerk to take bai L 5 But after bail has been allowed and its amount fixed it has been held that a clerk, by direction of the court, may accept and approve a bail bond, and that in so doing he acts, not as a magistrate, but for the court. 6 f SHERIFf A sheriff can take bail only where authorized to do so by statut e 7 In some of the states a sheriff is authorized dicial power within the meaning of the constitutio N 4 A law authorizing the clerk of a court to take bail in vacation and fix its amount is not unconstitutional, as conferring upon him judicial poweRState v Sureties of Krolme (Wyo- ming, 1893), 34 Pac Rep3 It was held in Kansas that when a court has failed to fix the amount of bail of a defendant arrested upon a warrant issued upon information, and there is no district judge in the county, the clerk of the District Court may fix the bail of the defendant, and this upon the ground that the statute so provide S State v Schweiter, 27 Ka N 499 See People v Kane, 4 De N ( N Y) 530; McCole v State, 10 Ind 50 5 Butler v Foster, 14 Ala 323; Antonez v State, 26 Ala 81; Morrow v State, 5 Ka N 563; Wallenweber v Co M, 3 Bush (Ky) 68 Contra, State v Sewall, 3 La An N 575; State v Wyatt, 6 La An N 701; State v Wells, 36 Iowa 238 A nunc pro tune order entered after the discharge of the accused will not validate a recognizance originally in- vali d State v Caldwell (Mo, 1894), 28 S W Rep 4 See, to the same effe Ct Morrow v State, 5 Ka N 563 A recognizance is valid where it is taken by the clerk of one county court for the appearance of the ac- cused before the court of another count Y State v Wells, 36 Iowa 238 6 U S v Evans, 2 Flip P (U S)6os; Hunt v U S, 63 Fed Rep 568; Bodine v Co M, 24 Pa St 69; State v Satterwhite, 20 S Car 536 7 Jacquemine v State, 48 Mis S 280; State v Walker, i Mo 546 See commitment and delivering the same to the sheriff 1 U S v Rundlett, 2 Curt ( U S) 41; U S v Horton, 2 Dil L (U S) 94; U S v Case, 8 Blatchf (U S) 250 A United States commissioner can- not take bail from a person charged with a crime against the United States for his future appearance before the commissioneRU S v Case, 8 Blatchf (U S) 250 Where the state statute provides that an examination in a criminal matter cannot be adjourned longer than ten days, a recognizance for ap- pearance taken by a United States commissioner on adjournment for nineteen days is voi d U S v Hor- ton, 2 Dil L (U S) 94 2 A bail commissioner cannot take bail during the session of the Supreme Court. In re Bail Comr's, 85 Me 544 But see Co M v Merriam, 9 Allen (Mas S) 371 A commissioner of the Supreme Court of Utah may admit to bail a per- son accused of violation of a law of the United States prohibiting the of- fense charged in the territories of the United State S U S v Eldredge, 5 Utah 161 The time between the sittings of the court, duringa temporary adjournment from Saturday to Monday morning, is not part of the " session " of the court, within the meaning of Pu b StatMas S, C 212, 48, authorizing the commissioner to admit a prisoner al- ready convicted to bail when the " court is not in sessio N" Co M v Gove, 151 Mas S 392 3 Daniels v People, 6 Mich 381, holding, however, that it is not a ju- to take bail after the proper officer has fixed the amount thereof, but his power usually is merely to accept and approve the bon d 1 g WHERE GRANTE d The power to take bail can only be exercised by a court or magistrate of the state, county, or terri- tory where the crime was committed and the accused must be trie d 2 also State v Hill, 3 Ire d (N Car) 398; State v Mills, 2 Dev (N Car) 555; State v Hill, 3 Ire d (N Car) 398; State v Howell, n Mo 613; Luckett v State, 51 Mis S 799; Cornwell v State, 53 Mis S 386; State v Winnin- ger, 81 Ind 51 1 State v Balize, 38 La An N 542; State v Gilbert, 10 La An N 524; State v McKeowan, 12 La An N 596; Evans v State, 63 Ala 195; Peters v State, 10 Tex App 302; Kiser v State, 13 Tex App 201; La Rose v State, 29 Tex App 215; Ellis v State, 10 Tex App 324; Co M v Reed, 3 Bush (Ky) 516; Merrill v State, 46 Ala 82; Dickinson v Kingsbury, 2 Day (Con N) i; McClure v Smith, 56 Ga 439; Kearns v State, 3 Blackf (Ind) 334; McCole v State, 10 Ind 50; Kellogg v State, 43 Mis S 57; State v Jenkins, 24 Mo App 433 See also Jackson v State, 13 Tex 218; State v Milter, 31 Tex 564; Patillo v State, 9 Tex App 458; Moss v State, 6 Ho W (Mis S) 298; Pace v State, 25 Mis S 54; State v Brown, 32 Mis S 275; Pinson v State, 28 Ark 397; Gray v State, s Ark 265; State v Edwards, 4 Humph (Tenn) 226; State v Horn, Meigs (Tenn) 473; Peacock v People, 83 111 331; Welborn v People, 76 111 516; Baldwin v State, 126 Ind 24; Shreeve v State, n Ala 676; Gover- nor "v Jackson, 15 Ala 703; Gray v State, 43 Ala 41 By Verbal OrdeRIn Trimble v State, 3 Ind 151, it was held that a recognizance taken by the sheriff for the appearance of a prisoner indicted was not void under the statute from the circumstance alone that the amount of bail was not indorsed on the proces S A verbal order of a jus- tice of the peace directing the sheriff to take bail is sufficient authority therefor, where the justice has fixed the Amount State v Hendricks ( La , i883), 5 So Rep 177 An Order of a Judge, authorizing a sheriff to discharge the accused on his giving a bond in a specified amount, authorizes the sheriff to take the bond when offered and to file it.

Autor of the post: Undefined

2 Where such provisions exist Post Date: Fri, 1 Aug 2008 0:46:23 +0000
State v Loeb, 21 La An N, 599 A Recognizance taken by a sheriff at the direction of a judge and in the form of a bond with conditions is good and vali d State v Houston, 74 N CaR549 Outside of Precin Ct Where a person is arrested by a sheriff outside of the jurisdiction of the latter, the sheriff has no authority to hold him to bail, and a recognizance so taken is voi d Blevins v State, 31 Ark 53 Court in Sessio N A sheriff cannot take bail during the session of the court, and a recognizance so taken is voi d Gray v State, 43 Ala 41 Nor where the warrant of arrest is returnable to a court then in sessio N Bourdeaux v Warren County, 66 Mis S 231 2 Clark v Clevelan d 6 Hill ( N Y) 344; People v Harris, 21 How Pr ( N Y Supreme Ct) 83; Matterof Gorsline, 21 How Pr ( N Y Supreme Ct) 85; People v Chapman, 30 How Pr ( N Y Supreme Ct) 202; Matter of Good- hue, i Whee L CRCa S ( N Y) 427; Co M v Jailer, i Grant's Ca S (Pa) 218; Ex p Erwin, 7 Tex App 288; Parrish State, 14 Md 238; State v Woolery, 39 Mo 525; Rex v Season, i L d Ray M 61: Rex v Mackintosh, i Str A 308 Where the accused is charged with felony, before indictment bail can be taken only in the county where the warrant is issue d Clark v Cleve- land, 6 Hill ( N Y) 344 But after indictment bail may be taken in any county where the accused is arreste d People v Clews, 14 Hun ( N Y) 90, affirmed in 77 N Y 39 But see People v Mead, i N Y Cri M Rep 417 In Missouri after the accused is indicted he can be admitted to bail only by a judge of the court in which the indictment is pending, unless ap- plication be made on habeas corpus, returnable before some other judge; and a recognizance taken by a judge of another court, where no writ K ABUSE OF POWERThe power to take bail carries with it liability for abuse of it; and the magistrate who abuses such power is liable both to the public and to individual S 1 3 Right to Give Bail A IN GENERAL Applicatio N If the accused desires to be bailed, he must demand or apply for it, and the magis- trate is authorized to commit him unless he does So 2 Such applica- tion may be made at any time before conviction, so that if the ac- cused is not prepared with bail at the time of examination or commitment, he may subsequently apply therefor; and if the of- fense is bailable and he furnishes proper bail, it is the duty of the magistrate to release him thereo N 3 At Common Law the granting or refusing bail was in all cases a matter which was held to rest in the sound discretion of the court ; and this rule, applied in England, 4 has sometimes 2 2 Haw K p C, C 15, 12, 14 Where the court before which one accused of an offense has exclusive jurisdiction to try him therefor with- out a jury, unless the case be duly re- moved to another court, an applica- tion to be bailed, to await the action of the grand jury, is properly denied, where there is no request for an ad- journment for the purpose of procur- ing an order of removal to another court. People v Starks (Supreme Ct), i N Y Supp 721 3 i Chitty Cri M Law 101; Haw K P C, b K 2, C 16, i, not e At Common Law bail might be taken at any time before conviction, and for any offens e Rex v Marks, 3 East 157; People v Van Home, 8 Barb ( N Y) 158; Matter of Goodhue, i Whee L CRCa S ( N Y) 427; U S v Hamilton, 3 Bal L (U S) 17; In re Barronet, i E L B L i; 72 E C L i; State -v Rockafellow, 6 N J L 332; Ex p Gilchrist, 4 McCord ( S Car) 233- Where a person accused has been admitted to bail in a certain sum and, having failed to furnish it, has been committed to jail, he is entitled to be released on giving the required bail at any time before trial, although mean- time an indictment has been found against him and a term of court has passe d Skelton v Robinson (Ala, 1894), 16 So Rep 74 Where a person accused of a bail- able offense has been committed, he may be admitted to bail by the magis- trate at any time on giving sufficient bai L Moore v Co M, 6 W S (Pa) 4 Rex v Mickal, n Mo d 261; In re Robinson, 23 L J QB 286; Watson's of habeas corpus has been obtained, is invali d State v Watson, 54Mo App 416 See State v Field, 112 Mo 554 1 2 Haw K p C, C 15; Rex v Brooke, 2 T R196; State v Arthur, i McMul L ( S Car) 456 Improperly Taking Bai L If a magis- trate lets to bail for an offense not bailable by law he is liable to punish- ment as for a negligent escape, and it is no excuse that he did not know the offense was not bailable; it is his duty to know, and in letting to bail he acts at his peri L 2 Haw K p C, C 15, 7; Rex v Clarke, 2 Str A 1216; Rex -v Brooke, 2 T R196; State v Arthur, i McMul L ( S Car) Insufficient Bai L Although a magis- trate who takes insufficient bail is liable to be fined, such liability accrues only if the accused fails to appear; if he appears, the magistrate is not so liable, although the bail be insuffi- cient, as the purpose of the law in requiring bail is satisfied by the ap- pearance of the accuse d 2 Haw K p C, C 15, 6 Refusing Bai L It is a misdemeanor both at common law and by statute for a magistrate to refuse or unduly delay to bail any person entitled to be bailed ; and he is also liable in damages to the party injure d Haw K p C, b K 2, C 15, 13; 4 Blackstone Co M 297; Reg v Badger, 4 QB 468, 45 E C L 468; State v Campbell, 2 Tyler ( Vt) 177; Gregory v Brown, 4 Bibb (Ky) 28; Lining v Bentham, 2 Bay ( S Car) i; State v Johnson, 2 Bay ( S Car) 385; Evans v Foster, i N H 374; Boyer v Potts, 14 S R(Pa) 158; Hardison v Jordan, Ca M N (N Car) 454 The Constitution of the United States and those of most of the states provide that all persons shall be admitted to bail before conviction, on giving sufficient sureties, except in cases of capital offenses where the proof of guilt is evident or the presumption of it great. 2 Where such provisions exist, bail is a matter of right, not discretion, in all cases not embraced in the exceptio N 3 b VARIOUS OFFENSES Capital Case S Under the constitutional provisions generally existing in this country bail is a matter of right even in cases of capital offenses, unless the proof of guilt is evident or the presumption thereof stron g 4 Where such proof Case, I Sal K 106; Rex v Wilkes, 4 BurR2527; Reg v Scalie, gDow L Pr Ca S 553 1 U S v Lawrence, 4 Cranch ( C C) 518; Corbett 2* State, 24 Ga 391; Street -v State, 43 Miss, i; People v Hyler, 2 P Ark CRRe O 570; People v Van Home, 8 Barb ( N Y) 158; People v Dixon, 4 P Ark CR Rep 651; State v Satterwhite, 20 S Car 536 In Georgia the Superior Court has been held to have discretionary power to admit to bail in all cases whatsoever, State v Abbot, R M Charlt ( Ga) 244; State z Wicks, R M Charlt ( Ga) 139; but where the crime is of a high grade and the proof clear, bail will be denied, State v Howell, R M Charlt ( Ga) 2 Stimson's StatLaw, 122 3 Ex p Randon, 12 Tex App 145; Drury v State, 25 Tex 45; McCoy v State, 25 Tex 33^ Co M v Keeper of Prison, 2 Ash M (Pa) 227; Ready v Co M, 9 Dana (Ky) 38; Foley v People, i -111 57; Shore v State, 6 Mo 640; Ex p Jones, 55 Ind 176; Ex p Wray, 30 Mis S 673; Street v State, 43 Miss, i; Ex p Bridewell, 57 Mis S 39; Ex p Hamilton, 65 Mis S 147; Moore v State, 36 Mis S 137 See also State v Patterson ( S Car, 1894), 19 S E Rep 498 A person accused of a capital crime and held under a mittimus, issued by a magistrate, to await the action of the grand jury, is entitled, upon habeas corpus, to introduce evidence and show the real character or circum- stances of the alleged offense, and should be admitted to bail unless " the proof is evident, or the presumption great" that he is guilty of a capital offens e The right on habeas corpus is not lost or surrendered by the accused having waived a preliminary examina- tion before the magistrate, and the omission of the magistrate to make the examination on account of such waiveRBenjamin v State, 25 Fla 675 See also Ex p Harfourd, 16 Fla 283 The meaning of the constitutional provisions allowing bail is that a party accused of any bailable offense shall have the inestimable privilege of giving security for his attendance at court, and shall not be imprisoned if he can give security in a reasonable sum of money for his appearanc e This guarantee is, not that he may give such security for one or two of- fenses, but for every offense he may commit.

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