Laws

Sackett v Tucker, 18 Post Date: Fri, 1 Aug 2008 5:48:04 +0000
Robeson v Thompson, 9 N J L 97; Carter v Cockrill, 2 Munf ( Va)448 A bail bond recited a full description Condition S The purpose of a bail bond is to secure appearance, and that should be its conditio N 1 Such bonds have been held void where they contained other conditions than those prescribed by law, 2 or omitted prescribed conditions beneficial to the sure- tie S 3 of the action, except the name of the county where it was pendin g It ap- peared that there was an action in O county corresponding to the recital, and the bond was held goo d Deboard v Brooks, 28 Ga 362 A bail bond conditioned that the principal shall appear at the court indicated by the writ and answer the plaintiff, is good, although it contains no recital that the party was arreste d Walker v Massey, 10 Ala 30 Where the sheriff arrested a defend- ant on a bail writ, and by mistake took a bond for the jail limits, stating that the defendant was imprisoned under a f A s A, the bond was held to be void and the defendant not es- topped to deny that there was a f A s A Miller v Bagwell, 3 McCord ( S Car) 429 1 Jackson v Hunter, 6 T R71; Rogers v Reeves, i T R418; Loyd v McTeer, 33 Ga 37 See also Embree v Norris, 2 Ala 271; Hysinger v Col- man, 5 Blackf (Ind) 596 A bond conditioned for the appear- ance of the defendant on a day prior to its date is void, Samuel v Evans, 2 T. R569; or at a day different from that prescribed by law for holding court, Allen v White, Minor (Ala) 289 One conditioned for appear- ance eight days after its date is goo d Evans v Moseley, 2 Dow L Pr Ca S From Term to Ter M A condition in a bail bond that the principal shall attend at a certain term of the court, and from term to term thereafter until discharged by leave of the court, is goo d Simpson v Robert, 35 Ga 180; Embree v Norris, 2 Ala 271 Pay or SurrendeRA bail bond con- ditioned "that the principal shall well and truly pay the condemnation of the court or surrender his body to prison, in execution of the same, in terms of the law, and upon failure thereof the security will do it for him," is vali d Phillips v Parnell, 32 Ga 522 In Massachusetts a recognizance bond in poor-debtor proceedings, which requires the debtors to deliver them- selves up " for examination before some magistrate authorized to act," is sufficient, as the Statute of 1888, C 419, 12, provides that where the word "magistrate" appears it shall be construed "court or magistrat e" Stearns v Hemenway, 162 Mas S 2 Lexington, etc, RCo v Barbee, i Mete (Ky) 384; Basket v Scott, 5 Litt (Ky) 208 Where one arrested in a civil action gave a bond conditioned to appear on the first day of the term, while the statute required a bond to appear and abide the judgment held, that the defendant was not bound by the bond, and might appear by attorney on the second day of the ter M Magruder v Weisl, 2 N Mex 21 Contr A The fact that an undertak- ing given on an arrest contains con- ditions not authorized by statute, does not render it invali d Such con- ditions may be treated as surplusag e Haberstro z/ Bedford, 118 N Y 187 Where a writ commanded a sheriff to take two persons named and safely keepthem until they gave bail, and the sheriff took a bond conditioned for the appearance of one of them only, held, that the bond was goo d Grottick v Phillips, 9 Bin g 721, 23 E C L 438 3 Tucker v Davis, 15 Ga 573; Alexander v Bates, 33 Ga 125 A bond which is void as a statutory obligation cannot be enforced as a voluntary agreement. Sackett v Tucker, 18 Ga 401 Validity from CONSENT A recog- nizance of bail in error may derive validity from the express or implied consent of the parties to be affected by it, although it be defective in form; but where they have treated it as a nullity they are bound by their actio N Allen -v Kellam, 94 Pa St 253 Where at defendant's request the sheriff took to plaintiff's attorneys, for their approval or rejection, an under- taking given by defendant in a suf- ficient amount, but with only one surety, and plaintiff's attorneys ap- Amount A bond is not void because taken in a different amount from that require d 1 Constructio N A bond or recognizance is to be construed accord- ing to the rules of the court in wlaich the action is pending, and not strictly by its term S 3 Bail-piec e A bail-piece should be properly entitled, should name the court and parties, and be file d 3 Assignment of Bail Bond S An assignment of a bail bond should be made by the sheriff to whom it was given, or his successor, to the party for whose benefit it was take N 4 be made by the sheriff, under his hand and seal, and have two subscribing witnesses theret O Soloman v Evans , 3 McCord ( S Car) 274 It is no objection to the assignment of a bail bond that it was not made in the official character of the officer to whom it was executed, where such character appears in the bond itself Nor is it a valid objection that the as- signment is not under seal, where there is no statute requiring it to be seale d Wilcox v Ismon, 34 Mich 271 By Stat4 Anne, C 16, 20, the sheriff was required to assign the bail bond to the plaintiff on his request after its for- feitur e Such assignment should be under seal, Hams v Ashby, i Sel W N P 586, note; and executed in the pres- ence of two witnesses, Phillips v Barlow, i Bin g N Ca S 433, 27 E C L 446 Plaintiff could not be one of the witnesse S White v Barrack, 5 Dow L Pr Ca S 64 Effect upon Suit.

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Brooke v Stone, I Wil Post Date: Fri, 1 Aug 2008 5:35:03 +0000
By taking an as- signment of a bail bond and suing on it, the plaintiff does not put an end to the original action, and should not discontinue it. Ede v Collingridge, 7 JuR203 He may proceed with the original actio N Betts v Smyth, 2 Q b 113 But after so doing plaintiff cannot call for a return to the writ, before it is determined whether the bond is good or not. Brooke v Stone, I Wil S 223 Contra, if the bill is voi d If the plaintiff proceeds to execution against the bail he cannot have execu- tion against the defendant, although the bail are not goo d Allen v Snow, After Bail Put i N After bail to the action is put in, plaintiff cannot take an assignment of the bail bond unless he has properly excepted to the bail to the actio N Caines v Hunt, 8 John S ( N Y)358 A plaintiff does not waive his right proved it held, that it was void as being taken colore officii, but was valid as an agreement between the partie S Toles 7'.

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Carr v Sterling, 53 Post Date: Fri, 1 Aug 2008 5:19:21 +0000
Adee, 84 N Y 222 1 Barber v Floyd, 109 Mas S 61 A bail bond taken for more than twice the sum sworn to is good, Norden v Horsley, 2 Wil S 69; but a sum larger than twice the amount sworn to should not be required, Wingrave v Godmond, 6 C p 66, 25 E C L 284 Where a statute required the sheriff to take a bail bond in double the amount for which bail was required held, that this was merely directory, and that a bond in a less sum was valid as a common-law obligatio N Bever- idge v Chetlain, I 111 App 231 2 Beers v Haughton, 9 Pet ( U S) 3 Anonymous, 2 Chit 77, 18 E C L 255; Hall's Bail, I Chit 79, 18 E C L 34; Holt v Frank, i M S 199; Aus- ten v Fenton, I Taunt 23; Lowe v Galloway, 5 Taunt 663 It is no objection to a bail-piece, given by one of two or more defend- ants, that it does not take notice of the other or other S Smith v Wallace, i V/as H ( Va) 254 When a memorandum of a recogni- zance is filed it becomes a record of court on which action will lie, although the bail-piece was taken before a single judg e Green v Ovington, 16 John S ( N Y)55- " A bail-piece is not process nor in the nature of process, but is only evidence that the surety has become bai L At common law the bail-piece seems not to have been delivered to the person becoming bail, but it was signed by a judge and filed in the court in which the case was pendin g" Worthen v Prescott, 60 Vt 68 4 Kruse v Kingsbury (Mich, 1894), 60 N W Rep 443 How Execute d An assignment must Cancellatio N The court has power to order a bail bond to be de- livered up and canceled, and will do so for good cause show N 1 Substitution for Lost Bon d Where a recognizance of special bail was lost from the files of the court, and the plaintiff moved to sub- stitute a copy to stand in lieu of the original, it was held that the court had no jurisdiction to order the substitution to be made without notice to the suretie S 2 10 Extent of Bail's Liability in Genera L The liability of bail is limited by the bond or the judgment, and cannot be extended by constructio N 3 Bail Belo W Bail to the sheriff are liable for the plaintiff's whole debt and costs, provided it does not exceed the penalty of the bon d 4 to an assignment of the bail bond by excepting to bail above put in after forfeiture of the bail bon d Boldero v Gray, Cow P 769; Edmond v Ross, 9 Price 5 After Ple A By accepting a plea and proceeding in the suit a plaintiff does not waive his right to proceed on the bail bond against the appearance bai L De Myer v McGonegal, 32 Mich 120; Wilcox v Ismon, 34 Mich 268 1 Needham -v Bristow, 4 Scott N It will do so for a variance between the capias and a paper served as a copy of the writ, Copley v Mederios, 8 Scott N R172; but not because de- fendant has rendered himself to jail according to its condition, Ridler v Chappelow, 6 JuR375 Rule to show cause why a bail bond should not be canceled should be served on the sheriff as well as on the ilaintiff , and the motion will be denied if the sheriff is not notifie d So held, irhere defendant died after giving bail to the sheriff and before putting in bail to the actio N Cook z/ Lynch, 2B C Rep 291 2 Montgomery v Henry, 10 Mich 19 3 Fetterman v Hopkins, 5 Watts (Pa) 539; Beers v Haughton, 9 Pet (U S) 329; Oxley v Turner, 2 Va Ca S 334; Mumford v Stocker, I Co W ( N Y) 601; New Haven Banks'. Miles, 5 Con N 588; Longstreet v La- fitte, 2 Speers ( S Car) 664; Murden v Perman, i McCord ( S Car) 128; Kinsler v Kyzer, 4 McCord ( S Car) 315; Bryce v Morton, i Nott M ( S Car) 64 Bail are liable for the amount re- coverable in the original action and costs, to an extent not exceeding the penalty of the bail bon d Simmons v Kelly, 39 N J L 438 They are liable for interest on the judgment to the same extent as the principa L Kenan v Carr, 10 Ala 867 The sureties on a bail bond are only liable to the extent of the penalty of the bond, with interest from the time when return of non est inventus is mad e Heustis v Rivers, 103 Mas S 398 Judgment Conclusiv e Judgment against the debtor regularly obtained is conclusive upon the special bail; and a bill filed by bail, after judgment against the debtor, and judgment by default against himself, for relief, on account of a payment made by the debtor prior to the suit and not taken advantage of in the suit, cannot be sus- taine d Foster v Wood, 6 John S C H ( N Y) 87 See also Greathouse v Dunlap, 3 McLean (U S) 303 Amendment Introducing New Cause of Actio N Whereon arrest of defendant in a civil action an undertaking to ob- tain his release was given held, that the sureties thereon were only liable for the cause of action alleged at the time of such arrest, and were not liable for another embezzlement subse- quently set up by amendment. Carr v Sterling, 53 N Y SupeRCt 255 See Fish v Barbour, 43 Mich 19, and article AMENDMENTS, Vo L I, p 676 Liability Governed by the La W The obligations of bail are assumed with reference to the law, which becomes a part of their contract, and the whole statute must be examined to determine their liabilit Y Matoon v Eder, 6Cal Sheriff as Bai L If special bail be not put in, the sheriff is liable as bail, and to the same extent.

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f A Governor v Jones Post Date: Fri, 1 Aug 2008 5:01:48 +0000
1 When not Liabl e Bail are not liable where the principal has sub- stantially performed his obligation, 2 or where the bond is voi d 3 Stevenson v Cameron, 8 T R28; Ort Oi v Vincent, Cow P 71 Bail Below become responsible for defendant's appearance and his put- ting in special bai L If he fails to do so they are liable to the same extent as special bail, and plaintiff may at his option proceed against them or the sheriff They cannot object, nor are they discharged by plaintiff's failure to proceed against the sheriff Wil- cox v Ismon, 34 Mich 272 If defendant does not put in spe- cial bail within eight days after the execution of process upon him, plain- tiff may sue on the bail bon d Robin- son v Hawkins, i JuR843; Hillary v Rowles, 2 Dow L Pr Ca S 201 Defendant, by surrendering himself to the sheriff, cannot vacate the bond or thus prevent plaintiff from suing on it if special bail be not put i N Hodg- son v Mee, 5 N M 302 1 Fuller v PreSt, 7 T Rio5; Wolfe v Collingwood, I Wil S 262 Election of Remedie S A plaintiff can- not sue on the bail bond and at the same time proceed against the sheriff to compel him to bring in the body of the Defendant He should elect one or the other course and pursue it. Blackford v Hawkins, I Bin g 181, 8 E C L 461; Whittaker v Oldaker, i M R298; Brown v Neave^Wight W 406; People v Wyatt, 15 East 215 Failure to Justif Y Where a statute provides that if bail fail to justify the sheriff shall be liable as bail, and that such bail shall be liable to the sheriff for the damages sustained by him from their failure to justify held, that on failure to justify, sureties on an un- dertaking of bail were not liable as rtz7either to plaintiff or the sheriff, and were only liable to the sheriff for the damages sustained by him from their failure to justif Y Clapp v Schutt, 44 N Y 104 Liability as Special Bai L A sheriff or other officer, where he has neglected to take bail in a proper case, may be declared special bail by order of court on reasonable notic e Rowand v Grid- ley, i How (Mis S) 210 Compare, how- ever, as to the necessity of notice, Gray v Hoover, 4 Dev (N Car) 475 The sheriff becomes a special bail when he lets a prisoner go at large without taking bail, or takes a bail bond and does not assign it, or takes insufficient bail if exception is season- ably made for that caus e Hart v Lanier, 3 Hawks (N Car) 244; Gray v Hoover, 4 Dev (N Car) 475; Stuart v Fitzgerald, I Law Repo S (N Car) 234- He is not liable on his official bond for omitting to take bail, but is liable only as bail on set. f A Governor v Jones, 2 Hawks (N Car) 359 And the remedy against a sheriff for taking insufficient bail is equiva- lent to the remedy against sufficient bail, subject to their right of discharge oRsurrendering the principa L Crook- er v Hutchinson, i Vt 73 If a deputy of the sheriff take insuf- ficient bail, the sheriff is answerable therefoRTeasdale v Hart, 2 Bay ( S Car) 173 The sheriff's liability ceases if he surrenders the principal to himself and detains him, and gives the plaintiff notic e Huggins v Fonville, 3 Dev (N Car) 392 See further, in respect of the liabil- ity of the sheriff for not taking bail or for taking insufficient bail, Gerrish v Edson, i N H 82; Harrington v Bogue, 15 Vt 179; Middlebury Bank v Rutland, 33 Vt 427; Hazard v Slade, i d Chi P ( Vt) 199; Sher- wood v Pearl, i Tyler ( Vt)3i4; Ben- nett v Brown, i Strob H ( S Car) 303; Buffalow v Hussey, Bus b (N Car) 237; Jackson v Hampton, 10 Ire d ( N Car) 579; Montgomery v McAlpin, i Ire d (N Car) 463; Hart v Lanier, 3 Hawks (N Car) 244; Neal v Gaines, i Stew (Ala) 158; Hutchisson v Gov- ernor, 23 Ala 809; Bartlett v Mar- shall, 2 Bibb (Ky) 467; Kidder v Parlin, 7 Me 80; Mather v Green, 17 Mas S 60 2 Where a debtor does all that is required of him under the conditions of a recognizance, bail are not rendered liable because from the fault of the magistrate an error was committed in the proceeding S Ithaca First Nat Bank -v Gogin, 148 Mas S 448 3 Wood v Yonge, 9 Port (Ala) 208 Where the statute gave a debtor 11 Fixing Liability of Bai L In order to fix the liability of bail it is necessary that a capias ad satisfaciendum should be duly and properly issued and returned non est inventu S* This, if fairly arrested a right to the writ of habeas corpus, but made no provision for ad- mitting to bail prior to the trial of the habeas-corpus proceedings held, that a recognizance taken for appear- ance at the trial of the habeas-corpus proceedings was void as against the sureties, and they were not liable thereo N Wallace v Prott, 4 Mackey ( d C)259- Common-law Obligatio N Where an undertaking of bail differs materially from the order of arrest, it is void as a statutory obligation as being taken by the sheriff colore officii, but if bail have consented to its form it may be enforced as a common-law obligatio N Cook v Freudenthal, 80 N Y 202; Toles v Adee, 84 N Y 231 Error of Cler K Where the clerk of the court attached the affidavit to hold to bail to the original declaration and process, instead of to the copy as re- quired by statute held, that this did not render the bail given illega L Gladden v Dozier, 71 Ga 380 But see Ruggles v Berry, 76 Me 262 Not Approve d Where the statute provided that a bail bond could be ap- proved by the creditor, his attorney, or two justices held, that the creditor could waive such approval and the sureties would be liabl e Battle v Knapp, 60 N H 361 Want of Jurisdiction Cost S Where a suit in which a recognizance is taken is dismissed for want of jurisdiction, the recognizance may nevertheless be enforced for the payment of costs to defendant where the recognizance was taken by virtue of a statute requiring it.

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(U S) 604 Englan d Post Date: Fri, 1 Aug 2008 4:44:36 +0000
Plattsburgh First Nat Bank v Post, 65 Vt 222 Arrest on False Affidavit Where an arrest is made on an execution in due form, the validity of such arrest and of a recognizance given thereon can- not be questioned in an action on the recognizance upon the ground of the fa'.sity of the affidavit on which the arrest was mad e The remedy is an action for malicious prosecutio N Ev- erett v Henderson, 146 Mas S 89 See Jackson v Gilmartin, 61 Ga 544 1 Alabama Brown v Simpson, 3 Stew (Ala) 331 Arkansa S Duncan v Owens, 47 Georgia Lichten v Mott, 10 Ga 138 Illinoi S Murphy -v Summerville, 7 111 360 KentucKy Abbott v Daniel, 3 Mete (Ky) 339; Allcorn v Tuggle, 3 Mete (Ky) 537- Massachusett S Rowland v Sey- mour, 2 Met (Mas S) 590 Michiga N Barnum v Waterbury, 38 Mich 280 New Jerse Y Armstrong v Davis, I N J L No New York Kane v Ingraham, 2 John S Ca S ( N Y) 403; Gillespie v White, 16 John S ( N Y) 117 South Carolina Broaders v Welsh, 2 Nott M ( S Car) 569; Saunders v Bobo, 2 Bailey ( S Car) 492; Rosen- berg v McKain, 3 Rich ( S Car) 145; Ancrum -v Sloan, I Rich ( S Car) 421 Ver Mont Howe v Ransom, i Vt 276; Fuller v Howard, 6 Vt 561; Ste- vens -v Adams, Brayt ( Vt) 29; Tur- ner v Lowry, 2 Ai K ( Vt) 72 VirginiaBranch v Webb, 7 Leigh ( Va)37 I United State S Davidson v Taylor, 12 Wheat. (U S) 604 Englan d Philpot v Manuel, 5 d R615, 16 E C L 244; Armitage v Rigbye, 5 A d E L 76, 31 E C L 277; Thackray v Harris, IB A 212; Elliot v Lane, i Wil S 334; Briggs v Richardson, 2 Dow L Pr Ca S 158; Sandon v Proctor, 7B C 800, 14 E C L 131; Burks v Maine, 16 East 2 See also Bradley v Bishop, 7 Wen d ( N Y)353; Deboard v Brooks, 28 Ga 362; Lee v Chilton, 5 Munf ( Va)4O7; Bernard v McKenna, 4 Cranch ( C C) 130 Appearance Bail, where no special bail is entered, remain liable in the same manner and entitled to the same uefense as special bail, and cannot be sued until execution against the body is issued and returned " not foun d" Fisher v Drewa, 63 Mich 655 In the Admiralt Y After a final de- cree for the libellant in a suit in per- sonam, in which the respondent gave bail to appear and abide, the libellant may apply to the court, show that the respondent was gone beyond seas, and thereupon obtain a monition to the bail to appear and show cause why they should not be decreed to satisfy done, generally fixes such liability, 1 unless defendant be surren- dered within the time allowed therefoR2 But in some states the liability of bail is not fixed until judgment is obtained against them, unless defendant dies after a return of non eSt 3 The death of the defendant after a return of non est to an execution against him prevents a surrender, and fixes the liability of bail inevitabl Y 4 12 Proceedings against Bail in Genera L The liability of bail is usually enforced by means of a scire facias, 6 but in some states the damages and costs; and it is not sufficient cause to be shown by the bail that no execution against the principal has been returned non est in- ventu S Snow's Bail, 2 Curt (U S) On Return Da Y To fix the liability of bail a return of non est inventus must be made upon the return day of the execution; if made before that day it does not fix liabilit Y McAuliffe v Lynch, 17 RI 410 Contra, Mehrle v Gurney, 146 Mas S 331 See also Wilson v Eads, HempSt (U S) 284 Law Change d Where, after a bail bond was given, the law in relation to imprisonment for debt and bail was changed held, that the liability of bail must be fixed according to the law in force at the time bail was give N Ware v Miller, 9 S Car 13 Execution What Count Y Where, after an arrest and bail given, the part of the county in which defendant re- sided was by law annexed to another county held, that it was not necessary to issue execution to the sheriff of that county in which defendant resided at the time bail was given, in or- der to fix the liability of bail, but that execution to the sheriff of the county to which the section where defendant resided was annexed was sufficient.

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Collusion between the parties Post Date: Fri, 1 Aug 2008 4:30:50 +0000
Johnson v Myer, 17 Hun ( N Y) 232 In Kennedy v Spencer, 4 Port (Ala) 428, it was held that it was not neces- sary that a c A s A should issue to a county to which the defendant removed after arreSt Eeturn by Request of Plaintiff Where a return of non est was made by request and direction of plaintiff's attorney, and without the knowledge or consent of defendant, in order that action might be brought held, that bail were not fixed, and that such facts were a defense to an action against the sheriff as bai L Douglas v Haberstro, 88 N Y 6 N 1 Saunders v Bobo, 2 Bailey ( S Car) 492; Collins v Cook, 4 Day (Con N) i; Howe v Ransom, i Vt 276; Runlet v Warren, 7 Mas S 477; Stevens v Bigelow, 12 Mas S 433; Brown v Wallace, 7 Mas S 208; Crane v Shaw, 13 Mas S 213 Due Diligenc e In order to fix bail the officer must use due diligence, Beach v Elliott, 44 Con N 237; Halls / White, 27 Con N 488; and whether he has done so is a question of fact for the jur Y Bebee v Gardner, n Con N 104 2 Brownelow v Forbes, 2 John S ( N Y) 101; Brown v Smith, 9 John S ( N Y) 84; Edwards v Gunn, 3 Con N 316; McClurg v Bowers, 9 S R(Pa) 24; Allen v Breslauer, 8Cal552; Dunbar v Conway, n Gill J (Md) 92; Shannon v Hyde, 17 Ga 88 3 Champion v Noyes, 2 Mas S 485; Pearson v State, 7 Tex App 279; Griffin v Moore, 2 Ga 331 4 Olcott v Lilly, 4 John S ( N Y) 407; Bradford v Earle, 4 Pic K (Mas S) 120; Goodwin v Smith, 4 N H 29; Gordon v Liepman, 3 McCord ( S Car) 49 Contra, White v Cummins, i Overt. (Tenn) 224 Where the principal dies after the return of non est to a c A sa, this defi- nitely fixes the liability of bail; death of the principal before that time dis- charges bai L Olcott v Lilly, 4 John S ( N Y) 407; White v Blake, 22 Wen d ( N Y)6i2 Dismissal of Appea L Where an ap- peal is dismissed, this is equivalent to affirmance so far as to fix the liability of bail on appea L Cohen v Coner, 8 Ohio CiRCt Rep 678; Allen v Cat- lin (Wash, 1894), 38 Pac Rep 79 5 Alabama Kennedy v Rice, I Ala ii ; Brown v Simpson, 3 Stew (Ala) 331; Gliddenv Leonard, 4 Port (Ala) 194; Toulmin v Laidlow, 3 Stew p (Ala) 220; Kenan v Carr, 10 Ala 867 Georgia Davidson v Carter, 9 Ga 501; Ansley v Harris, 22 Ga 616; Gilmore v Lidden, 23 Ga 14 Indiana Lang v State, 3 Blackf 1 Mayor, etc, v Johnson, 5 Ark 691; Mix v Page, 14 Con N 329; Matthews v Cook, 13 Wen d ( N Y) 33; Murphy v Summerville, 7 111 360; Stafford v Low, 20 111 152; Heymes v Champlin, 52 Mich 26; Wilkinson v Nichols, 48 Mich 354; Whife v Guest, 6 Blackf (Ind) 228; Fitzgerald v Gray, 61 Ind 109; Mott v Hazen, 27 Vt 209 United States Court S The federal courts follow the procedure of the state courts, and where a state stat- ute provides that the liability of bail shall be enforced by action a judg- ment against bail entered in a federal court without action is invali d U S v Insley, 49 Fed Rep 776 Sufficiency of Declaratio N Where in a suit against special bail the declara- tion does not depart from the language of the affidavit in matter of substance, the declaration is not defectiv e Wil- kinson v Nichols, 48 Mich 354 In an action upon a recognizance of special bail, the omission to allege in the declaration that a f I f A has been issued and returned unsatisfied will not, it seems, defeat a judgment, if the objection has not been seasonably interpose d Heymes v Champlin, 52 Mich 26 Defenses Sufficient and Insufficient. Collusion between the parties to a suit to have a judgment entered up for the purpose of defrauding the bail is a good defens e Mott v Hazen, 27 Vt 209 See also Stevens v Bigelow, 12 Mas S 437 It is no defense in a suit against bail that the officer was prevented by the resistance of the principal from taking him in executio N Fitch v Loveland, Kirby (Con N) 384 It is a good defense that directions were given by the plaintiff which had the effect to prevent the service of process on the defendant in the origi- nal suit, whether such directions were fraudulent or not.

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In scire facias against bail Post Date: Fri, 1 Aug 2008 4:17:08 +0000
And it is a good defense that fraudulent or collusive means were used to prevent the ser- vice; but such defense must be dis- tinctly charged in the plea or notic e Bishop v Earl, 17 Wen d ( N Y) 316 Where bail suffered two terms to elapse without taking notice of an ir- regularity in the proceedings against them, they were not permitted after- wards to avail themselves of the (Ind) 344; Nichols v Woodruff, 6 Blackf (Ind) 180 Iowa State v Carr, 4 Iowa 289 KentucKy Kelly v Porter, 6B Mo N (Ky) 454; Peteet v Owsley, 7 T.B Mo N (Ky) 130; Bruce v Col- gan, 2 Litt (Ky) 286; Thomas v Mann, 4 Dana (Ky) 452; Perrott v Story, 9 Dana (Ky) 126 Maine Packard v Brewster, 59 Me 404; Hewins v Currier, 62 Me 236 Marylan d Chapeau v Middleton, IHar g (Md) 154 New Hampshire Pierce v Read, 2 N H 359- Pennsylvania Allesio v Blesh, i Pa Adv Rep 605; Griffiths v Grif- fiths, 9 Lan e L Rev (Pa) 139 South Carolina Usher v Frink, 2 Brev ( S Car) 84; Watson v Bancroft, 4 Strob H ( S Car) 218 Texa S Waughhop v State, 6 Tex Ver Mont Belknap v Davis, 21 Vt 409; Strong v Edgerton, 22 Vt 249; Davis v Dorr, 30 Vt 97 VirginiaBranch v Webb, 7 Leigh ( Va) 371 Defenses Sufficient and Insufficient. In scire facias against bail nothing can be pleaded in defense which could not have been used by their principal in defense to the action against hi M Toulmin v Laidlow, 3 Stew p (Ala) 220 It is no sufficient defense to an ac- tion against the surety on a bail bond, that the bond was obtained from the principal while under dures S Spicer v State, 9 Ga 49 Where a debtor, being arrested on the oath of a creditor that he believes he is leaving the state, gives a bond and breaks the conditions of it, it is no defense to a suit thereon to show that the debtor was not, in fact, leav- ing the stat e Marston v Savage, 38 Me 128 Where bail is taken without author- ity, it does not subject the bail to any execution or action, and upon de- murrer to a scire facias in such case the judgment must be for hi M Thomas v Mann, 4 Dana (Ky) 452 One defendant in scire facias against several as bail cannot avail himself of any irregularity in the proceedings against anotheRBruce v Colgan, 2 Litt (Ky) 286 has a right to demand an assignment of the bail bond given to the sheriff, and to sue on it for his own benefit.

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3 Payment of costs Post Date: Fri, 1 Aug 2008 4:02:55 +0000
1 But he may lose this right by waiver, 2 or by having already obtained the same benefit he would have derived from the putting in of special bai L 3 The sheriff may sue in any court on a bail bond, but a plaintiff can usually sue thereon only in the court out of which the process in the original action issue d 4 staying Proceeding S Application for stay on a bail bond should, if made on behalf of the original defendant, be founded on an affi- davit of merits; and if made in behalf of the sheriff, upon an affi- davit to the effect that the application is made in good faith, on his behalf, at his own expense and for his own indemnity, and without collusion with the original Defendant 5 Such affidavit may be entitled either in the action against the bail or in the original actio N 6 The application should be made seasonably, or it will be denied on the ground of lache S 7 Proceedings have been stayed where it was shown that bail above had been put in and justified, although no order allowing them had been made, 8 or that the principal had been surrendered, although bail had not objectio N Jones v Dunning, 2 John S Ca S ( N Y) 74 It is a good bar to an action against bail, that before a breach of the re- cognizance the plaintiff agreed that the principal might leave the state, and that no proceedings should be had until his retur N Clark v Niblo, 6 Wen d ( N Y) 236 Special bail who have become fixed cannot, in an action against them as such bail, show, either in bar or in mitigation, that before the recovery against their principal he was and has been since insolvent, and had no property whatever that could be or was liable to be applied towards the payment of such judgment. Levy v Nicholas, 19 Abb Pr ( N Y SupeR Ct) 282 Where bail below became bail above, and the plaintiff excepted, and then sued on the bail bond, the proceeding was set aside, with cost S Ex p Metzler, 5 Co W ( N Y) 287 1 Stat4 Anne, C 16, 20; i Sel- lon's Pr 126, 174; Higgins v Glass, 2 Jones (N Car) 353; Soloman v Evans, 3 McCord ( S Car) 274 But see, to the point that no assignment is neces- sary, Price -v Lee, I Bibb (Ky) 434; Ford v Lane, 8 Ga 322; Ansley v Harris, 22 Ga 616 2 Huguet v Hallet, i Ca I ( N Y) 55 See also Gorsuch v Holmes, 4 HaR M (Md) 4 3 Union Bank v Kraft, 2 S R(Pa) 284; Priestman v Keyser, 4 Bin N (Pa) 344 4 Morris v Rees, 3 Wil S 348; Mil- ler v Palfreyman, I N M 696; Walton v Bent, 3 BurR1923; Wright v Walmsley, 2 Cam P 396; Florence v Shumar, 34 N J L 455; McDougall v Richardson, 3 Hill ( N Y) 558 But see Haswell v Bates, 9 John S ( N Yl) 80; Davis v Gillet, 7 John S ( N Y) 318; Burtus v M'Carty, 13 John S ( N Y)424; Otis v Wakeman, i Hill ( N Y)6o4; Garvin v Gallagher, i Ga 315; Legare v Brown, 4 McCord ( S Car) 370 5 Call v Thelwell, 3 Dow L Pr Ca S 444; Grottick v Bailey, 5B A 703, 7 E C L 235; Bonnefor v Russell, 5 Dow L Pr Ca S 546; Hollett z/ Aubrey, 1 Dow L Pr Ca S 688; Dowson v Cull, 2 C J 761 6 Pocock v Cockerton, 7 Dow L Pr Ca S 21 ; Lisle v Chetwode, 2 TyR177; Stride v Hill, 4 Dow L Pr Ca S 709 7 Smith v Webb, 2 M W 879; Gould v Williams, i H W 344 Where several actions have been brought on the same bond, it is too late after verdict therein to apply for a stay on payment of costs of only one of the action S Johnson v Macdonald, 2 Dow L Pr Ca S 45 8 Crosby v Innes, 5 Dow L Pr Ca S 566 justifie d 1 If a trial has been lost, the bail bond maybe ordered to stand as security on staying proceedings thereon, 2 and the plain- tiff may sign judgment on it. 3 Payment of costs is usually re- quired as a condition of such sta Y 4 The allowance of a writ of error operates as a stay of proceeding S 5 And an injunction to stay proceedings against the principal stays all proceedings against special bai L 6 13 Discharge or Exoneration of Bail in Genera L Bail are en- titled to be discharged and to the entry of an exoneretur where there has been a performance of their obligation, or performance has been excused or rendered impossibl e 7 SurrendeRThe surrender of defendant by the bail before their liability is fixed operates as performance and discharges the M 8 1 Meysey v Carnell, 5 T R534; St Henlaire v Byam, 4B C 970, 10 E C L 485 2 Rex v London, 2 Bin g 227, 9 E C L 390; Stride v Hill, 4 Dow L Pr Ca S 709 3 Tory v Stevens, 2 JuR594 ; Moody v Pheasant, 2B p 446 4 Mann v Nottage, i Y J 367; Isaac v Richards, 7 Dow L Pr Ca S 5 Sampson v Brown, 2 East 439; Miller v Newbald, i East 662 Where a writ of error is allowed and served before the return day of a c A s A it stays all proceedings against the bai L Perry v, Campbell, 3 T R If a writ of error be allowed within the time in which bail have a right to surrender the principal, bail can ob- tain a stay of proceedings by giving an undertaking to pay the damages recovered or surrender defendant within four days of the final determi- nation, if such determination be in favor of plaintiff Sprang v Mon- privatt, ii East 316; Kershaw v Cart- wright, 5 BurR2819 Stay of Executio N The court will not stay an execution against bail, by order or injunction, on the ground that a writ of error is pending, if it was not taken out in time to be a super- sedea S Foyles v Law, 3 Cranch ( C C) 118 6 Webster v Chew, 3Har M (Md) 123 7 Trinder v Shirley, Doug L 45; Stockton v Throgmorton, i Bald W (U S) 148; Treadwell v M'Keel, 2 John S Ca S ( N Y)34o; People v Mor- rison, 75 Mich 30; Johnson v Smith, i Root (Con N) 373; Fisher v Riddell, I He N M ( Va) 330, not e Payment of Judgment Pending Appea L Where a defendant's bail, upon re- covery of judgment against him, elect to pay the amount of the judgment instead of surrendering his body, such payment, made while an appeal is pending, will not discharge their lia- bility as bail, but they will be liable, upon further process, for cost S Appleby v Robinson, 44 Barb ( N Y) 316 But payment of the judgment by a surety of the principal, the surety being a joint judgment debtor, will discharge the bai L Creager W Brengle, 8 Stamper v Milbourne, 7 T R118; Maddocks v Bullcock, iB p 326; Ruggles v Corey, 3 Con N 419; Stockton v Throgmorton, i Bald W (U S) 148; Peace v Person, i Murphy (N Car) 188; Bryan v Simonton, i Hawks (N Car) 51; Thorn v Delan Y 6 Ark 219; Myers v Irons, i A K Marsh (Ky) 156; Strang v Barber, i John S Ca S ( N Y) 329; Smith v Rosecrantz, 6 John S ( N Y) 97; Moyers v Center, 2 Strob H ( S Car) 439; Still v Howard, 2 Miles (Pa) 274; Gallagher v Kenedy, 2 Rawle (Pa) 163 ; McClurg v Bowers, 9 S R(Pa ) 24; Coolidge v Gary, 14 Mas S 115; Ryan v Watson, 2 Me 382 See also Gregory v Levy, 12 Barb ( N Y) 610; Buckman v Carnley, 9 How Pr ( N Y C P I) 180; McGregory v Wil- lett, 17 How Pr ( N Y SupeRCt) 439; Bigelow v Johnson, 16 Mas S 218; Thayer v Goddard, 19 Pic K (Mas S) 60; Safford v Knight, 117 Mas S 281; Jones v Varney, 8 Cus H (Mas S) 137; Clark v Flagg, n Cus H (Mas S) 539; Reed v Maynard, 11 Allen (Mas S) 394 See Surrender, infr A Contr A Appearance bail are liable for defendant's appearance and put- Abatement Matters which abate the suit operate as performance and discharge the bai L 1 Dela Y Mere delay in proceeding does not discharge bail unless they are injured thereby ; 2 but an agreement to extend time dis- charges them, although they are not damnifie d 3 ting in special bail, and they are not relieved by surrendering him in court unless special bail is put in and justi- fie S Bobyshall v Oppenheimer, 4 Wash (U S) 317, 4 Wash (U S) 333 But see Stockton v Throgmor- ton, i Bald W (U S) 148 The Administrator of Bail may surren- der the debtor and discharge the estat e Wheeler v Wheeler, 7 Mas S 169 The Offer of the principal to surren- der himself in discharge of his sure- ties is a good surrender, and dis- charges them from all liabilit Y Babb v Oakley, 5Cal93 Sheriff's Liability for Escap e Where a statute provided that the sheriff should be liable as bail if the defend- ant in an action of replevin escaped after arrest, or was rescued, or bail were not given or justified, or money in lieu of bail deposited, and that the sheriff could discharge such liability by giving and justifying bail, and bail was given, but, on being excepted to, failed to justify held, the sheriff could discharge himself from liability only by giving and justifying bail, as pro- vided by the statute, and that the sur- render of defendant did not relieve the sheriff from liabilit Y McKenzie v Smith, 48 N Y 148 Appearance Bai L Where plaintiff abides by the appearance bail and goes on to final judgment, the right of such bail to surrender their principal in their own exoneration continues to run with the plaintiff's right to insist on their continued liability for the de- fendant's appearance, and does not terminate until, in regular course, an execution against the defendant's body has faile d De Myer v McGon- egai, 32 Mich 120 Bail on Appea L Bail in error cannot surrender the principa L Southcote v Braithwaite, I T R624 Issuing execution against the body of the principal does not release or discharge bail in erroRPerkins v Pettitt, 2B p 440 1 Trinder v Shirley, Doug L 45; White v Cummins, i Overt.

Autor of the post: Undefined

It is no ground Post Date: Fri, 1 Aug 2008 3:46:14 +0000
(Tenn) 224 2 Livingston v Bartles, 4 John S ( N Y)478; Vandergazelle v Rodgers, 57 Mich 132 Contra, Howard v Mil- ler, i Root (Con N) 428 Issuing Executio N The fact that plaintiff delayed eight months after judgment before issuing execution does not release or relieve special bail, unless special injury was caused thereb Y Vandergazelle v Rodgers, 57 Mich 132 But see Maxwell v Will- iams, HempSt (U S) 172 A delay of two years in issuing exe- cution was held ground fordischarging the bai L Havemeyer Sugar Refining Co v Taussig, 44 Hun ( N Y) 476 And see Toles v Adee, 84 N Y 222 Where the issuing of an execution against defendant's body was delayed at the request of the sureties they are not discharged or released thereb Y Carr v Sterling, 114 N Y 558 3 Hannington v Beare, 4 Dow L Pr Ca S 256; Vernon v Turley, 4 Dow L Pr Ca S 660 To have this effect it must be a valid agreement to extend ti Me Ladbrook v Hewett, i Dow L Pr Ca S 488; Melvil v Glendining, 7 Taunt 126; Whitfield v Hodges, i M W 679 After Forfeitur e After a bail bond has been forfeited and an assignment thereof taken, if time be given to the principal this does not release the suretie S Woosnam v Price, 3 TyR375 See also Bay v Tallmadge, 5 John S C H ( N Y) 305 Consent of Bai L Where one of the bail consents to time being given the principal to perfect bail above, this binds both sureties, and they are not released from liabilit Y Howard v, Bradberry, 3 Dow L Pr Ca S 92 Indefinite Extensio N Where the plaintiff indefinitely extends the time of defendant's sureties to justify, this releases the sheriff from liability as bai L After such extension the sheriff cannot rearrest defendant until the sureties have actually made default in justifyin g Arteaga v Connor, 46 N Y SupeRCt 91 Judgment by CONSENT Bail are not discharged from liability .because of the act of defendant in consenting to the entry of a judgment against him Bankruptcy of Principa L If the principal is discharged in bank- ruptcy or insolvency before the liability of the bail is fixed, this discharges the bail ; * but it does not if the principal is discharged after the bail's liability is fixe d 2 imprisonment of Principa L The imprisonment of the principal in another jurisdiction for life or a long term of years without fault of the bail discharges the M 3 upon which an execution against his person could issue, where such consent was given in good faith and without collusio N Steinbock v Evans, 122 N Y 551- Part Payment. It is no ground of discharge of bail that plaintiff has issued execution against the principal and obtained part payment where he is only seeking to collect the balance of the debt from the bai L Stevenson v Roche, 9B C 707, 14 E C L 477; Brickwood v Annis, 5 Taunt 614 Cognovit.

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Where the principal was illegally Post Date: Fri, 1 Aug 2008 3:27:55 +0000
The taking of a cognovit by the plaintiff from the principal does not of itself discharge the bai L Hodg- son v Nugent, 5 T R277; Steven- son v Roche, 9B C 707, 17 E C L 477 Contra, Farmer v Thorley, 4 b A d 91, 6 E C L 402 But taking a cognovit and thereby extending time to pay the debt discharges the bai L Rex v Surrey, i Taunt 159; Bowsfield z/JTower, 4 Taunt 456 ; Croft v Johnson, 5 Taunt 319; Charleton v Morris, 6 Bin g 427, 19 E C L 121; Surman v Bruce, 10 Bin g 434, 25 E 1 Moorby v, Gadge, 2 Chit 104, 18 E C L 265; Mannin v Partridge, 14 East 599; Jones v Ellis, I A d E L 382, 28 E C L 107; Thackrey v Tur- ner, 8 Taunt 28; Todd v Maxfield, 3 b C 222, 10 E C L 56; Johnson v Lindsay, iB C 247, 8 E C L 106; Humphreys v Knight, 6 Bin g 569, 19 E C L 169; Slater v Stacey, 4 TyR372; Saunders v Bobo, 2 Bailey ( S Car) 492; M'Kim v Marshall, i HaR J (Md) 101 ; Richmond v DeYoung, 3 Gill J (Md) 64; Mc- Causland v Waller, iHar J (Md) 156; McArthur v Martin, i Gill (Md) 259; Trumbull v Healy, 21 Wen d ( N Y) 670; Rathbone v Blackford, i Ca I ( N Y) 588; Kane v Ingraham, 2 John S Ca S ( N Y) 403, Payson v Payson, i Mas S 292; Champion v Noyes, 2 Mas S 481; Bailey v Seals, i HarR(De L) 367; McGlensey v Mc- Lear, I HarR(De L) 466; Beers v Haughton, i McLean (U S) 226; Gil- lespie v Hewlings, 2 Pa St 492; Boggs v, Teackle, 5 Bin N (Pa) 332 Pending Appea L The bankruptcy of the principal and his discharge during the pendency of an appeal does not release the bail on appea L Southcote v Braithwaite, i T R624 See further, as to the effect of a dis- charge in bankruptcy, Bennett. Alex- ander, i Cranch ( C C) 90; Lingan v Bayley, i Cranch ( C C) 112 Federal Practic e But the Circuit Court of the United States requires the discharge of the principal, under a state insolvent law, to be pleaded by the bail, and does not hold the certifi- cate of discharge to be conclusiv e Glenn v Humphreys, 4 Wash (U S) 424; Richardson v M'Intyre, 4 Wash (U S)4i2 See further, as to the effect of dis- charge in insolvency under state laws, Davis v Marshall, i Cranch ( C C) 173; Baugh v Noland, 2 Cranch ( C C) 2; Burns v Sim, 2 Cranch ( C C) 75; Bussard v Warner, 2 Cranch ( C C) in; Munroe v Towers, 2 Cranch ( C C) 187; King v Simm, 2 Cranch ( C C) 234; Harrison v Gales, 3 Cranch ( C C) 376; Claggett v Ward, 5 Cranch ( C C) 669 2 Payson v Payson, i Mas S 292; Payne v Spencer, 6 M S 231; Clarke v Hoppe, 3 Taunt 46 Nor after the assignment of the bail bon d Bobyshall v Openheimer, 4 Wash (U S) 317 Contra, Ayres v Audubon, 2 Hill ( S Car)6oi; Lyon v Auchincloss, 12 Pet (U S) 234; Boyer v Herty, i Cranch ( C C) 251 3 Loflin z/ Fowler, 18 John S ( N Y) 335; Phoenix In S Co v Mowatt, 6 Co W ( N Y) 599; Cathcart v Cannon, i John S Ca S ( N Y) 28; Merrick v Vaucher, 6 T R50; Postell v Will- iams, 7 T R513 Transportatio N Where the principal was convicted of felony and sentenced to transportation for life held, that bail were entitled to be discharged, and an exoneretur was entere d Wood v Mitchell, 6 T R247 Death of Defendant The death of the defendant before the liabil- ity of bail is fixed discharges them, but does not if it occurs after the liability is fixe d 1 Judgment for Defendant Judgment in favor of defendant does not absolutely discharge bai L If it be set aside or reversed their lia- bility revive S 2 Putting in Bai L If defendant put in bail to the action or plain- tiff \veiives it, this discharges bail belo W 3 Enlistment of Principa L If the principal voluntarily enlists in the army or navy, this does not discharge bai L 4 Insanit Y The insanity of the principal does not discharge bai L 5 Privileg e If the principal becomes a privileged person, as a Illegal Imprisonment. Where the principal was illegally imprisoned and held until a bond was given, or if im- prisoned legally a bond was required which the officer was not authorized to require or take, the surety is not liable, and will be discharged if the illegality was unknown to him when the bond was give N Patterson v Gibson, 81 Ga 802 See also Atwood v Wheeler, 149 Mas S 96; Taylor v Fleckenstein, 30 Fed Rep 99 Ended before Judgment against Bai L The imprisonment of the principal does not release the bail or entitle them to exoneration where such imprisonment is terminated before judgment is en- tered in an action against the bai L Adrian v Scanlin, 77 N Car 317; Sedberry v Carver, 77 N Car 319 Acts of the Stat e Loss of the cus- tody and control of defendant by the bail, occasioned by the act of the state or government without fault of bail, and occurring before their liability is fixed, discharges the bai L Cranberry v Poal, 3 Dev (N Car) 157; Loflinf Fowler, 18 John S ( N Y) 335; Way v Wright, 5 Met (Mas S) 380; Caldwell v Co M, 14 Gratt ( Va)698 Contra, Devine v State, 5 Sneed (Tenn) 625; Parker v Chandler, 8 Mas S 264 1 Arthur v Antonio, I Nott M ( S Car) 251; Parker v Bidwell, 3 Con N 84; Griffin v Moore, 2 Ga 331; Mount Pleasant Bank, etc, v Pollock, i Ohio 35; Field v Lodge, 3 Doug L 410; Pynes v State, 45 Ala 52; Chandler v Byrd, i Ark 152; Merritt v Thomp- son, I Hilt.

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