Laws

1 5 Amount and Reduction Post Date: Fri, 1 Aug 2008 8:06:54 +0000
Smith v Watson, I Cranch ( C C) 311 ; Grayham v Kon- kapot, i Cranch ( C C) 313; Jolly v R'ankin, i Cranch (U S) 372 It must show the grounds upon which the belief of the plaintiff is based, that the court may judge of the reasonableness thereof Wood v Harrell, 74 N Car 338 Contr A An affidavit to hold to bail after the commencement of the action and before judgment, on the ground that defendant is about to leave the province, should in New Brunswick state the cause of action, and that de- fendant is about to depart, but need not state the grounds of deponent's belief as to such departur e McManus v Welk, 29 N Brun S 449 In United States Court. An affida- vit to hold to bail in the U S Circuit Court need not state that plaintiff is a citizen of another state than that in which the suit is brought, or that he which a writ of arrest issues cannot be set up in defense by third parties, nor even by the defendant himself after judgment. 1 5 Amount and Reduction of Bai L The amount of bail required is usually determined by the sum or damages claimed by the plain- tiff If the amount required is excessive, relief is to be obtained by motion or application to the court.

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Doremus v Kinney, 3 De Post Date: Fri, 1 Aug 2008 7:48:42 +0000
3 The papers used in such application should show the facts relied on in defense or mitiga- tion of the plaintiff's clai M 3 If it appears that the bail required is excessive it will be reduce d 4 Reduction of bail is matter of discretion which will not be reviewed on appeal, in the absence of abus e 5 6 Money as Bai L In the absence of a statute authorizing it, money cannot be received in lieu of bai L 6 The deposit of money as bail is allowed by statute in England and in some of the state S 7 is an alie N Cooper v Dungler, 4 McLean (U S) 257 Counter Affidavit S The right of plaintiff to special bail in trespass cannot be controverted by counter affidavits on a motion to discharge on common bai L Gall v Molesa, 3 Pa DiSt Rep 537 2 Bunting v Brown, 13 John S ( N Y) 425; Cromelines v Beldens, i Wen d ( N Y) 107; Keppele v Zant- zinger, 3 Yeates (Pa) 83; Newton v Bailey, 36 Ga 180 To Judge, not Court. Application to reduce bail should in the first instance be made to a judge or a commissioner, and not to the court. Doremus v Kinney, 3 De N ( N Y) 178; Smith v Newell, 7 Wen d ( N Y) 484 3 Britton v Richards, 13 Abb Pr N S (Brooklyn City Ct) 258 4 Jones v Keily, 17 Mas S 116: Bunting v Brown, 13 John S ( N Y) 425; Ballingall Y Burnie, i Hall ( N Y) 237; Keppele v Zantzinger, 3 Yeates (Pa) 83 In a suit for a publication prima facie libelous, where the defendant had been held to bail, by a judge's order, for one thousand dollars, on an affidavit that he was a transient person, resident out of the state, the court refused to discharge him on common bail, or to reduce the bai L Van Vechten v Hopkins, 2 John S ( N Y) 293 Several Bail Allowe d Where, on ap- plication to reduce bail, it appears that the bail is excessive, and that proper bail would still be a large amount, bail will be reduced, and de- fendant allowed to give bail by more than two persons justifying in the ag- gregate amount require d Cromelines v Beldens, i Wen d ( N Y) 107 Denied where Useless to Defendant Where, on application to reduce bail, it appeared that the amount required was excessive, and also that defend- ant was unable to give a proper amount of bail held, that the bail would not be reduced, as to do so would be a useless formalit Y People v Town, 4 111 19 5 Hart v Kennedy, 24 How Pr ( N Y Supreme Ct) 425; Newton v Bailey, 36 Ga 180 The sufficiency of an affidavit to hold to bail, and the amount of bail re- quired, under an act of congress, on process issued from the District Court of the District of Columbia, are to be determined by that court, and its de- termination will not be reviewed by the U S Supreme Court.

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Held, that the motion ought Post Date: Fri, 1 Aug 2008 7:38:36 +0000
Ex p Tay- lor, 14 How (U S)3 6 Eagan v Stevens, 39 Hun ( N Y) 311; Smart v Cason, 50 111 195 It was held in Strong v Tompkins, 8 John S ( N Y) 98, that a note of a third person, indorsed by a defendant who is arrested as security to the sheriff instead of bail, cannot be col- lected by the sheriff, the transfer being contrary to the statute concern- ing sheriff S 7 43 Ge O II I, C 46; 7 8 Geo V I, C 71; i 2 Viet, C no; De Mesnie v Dakin, 8B S 650, L R3 QB 18; Hermann v Aaronson, 8 Abb Pr, N S ( N Y C P I) 155 By 43 Geo II I, C 46, 2, it was pro- vided that all persons arrested on mesne process should be allowed, in lieu of giving bail to the sheriffs, to Money so deposited may, at the option of the defendant, be held and considered as bail to the action, at any time before the right to put in such bail expires, 1 or it may be withdrawn by him upon putting in special bai L 3 If special bail be not put in and the money withdrawn, the plaintiff is entitled to it if and when he obtains judgment, 3 although it was deposited by a third person and not by Defendant 4 Plaintiff must have obtained judgment or the suit must be legally determined before he can take out such mone Y 5 Money so deposited can be held and applied only to the purpose for which it was deposite d 6 deposit the sum indorsed on the writ (by virtue of the affidavit for holding to bail in that action), together with ten pounds (for costs), and should thereupon be discharge d 1 Strafford v Love, 3 Dow L Pr Ca S 593; Rome v Softly, 6 Bin g 634, 19 E C L 185; Stanford v M'Cann, 4 Dow L Pr CaR367; Hannah v Wil- lis, 5 Scott 731 2 Ham well v Mure, 2 Dow L Pr Ca S 155; Green v Glassbrook, i Bin g N Ca S 516, 27 E C L 477; Bloor v Cox, 6 Dow L Pr Ca S 266; Young v Maltby, 3 Dow L Pr Ca S 604; Alcenius v Nygren, 23 J L QB 287; Leach v Coppice, 3 Dow L Pr Ca S 74; Welchman v Sturgis, 13 JuR388 3 Cooke v Bell, 8 L T, N S 431; Welchman v Sturgis, 6 d L 739; Stead v Speigelberg, 10 W R46; Hews v Pyke, 2 TyR313; Johnson v Wall, 4 Dow L Pr Ca S 315 Deposit to Render Witness Competent. In an action on a bail bond, one who was a surety was offered as a wit- ness, but was objected to, whereupon a friend of the defendant deposited with the clerk one hundred dollars of his own money, " for the benefit of the witness, in case of his liability on the bon d" The witness was sworn; judg- ment was rendered on the bond; and the plaintiffs moved that the money deposited should be applied to satisfy the judgment. Held, that the motion ought not to be granted; and this upon the ground that the money was not deposited by the debtors, or for their use, or for the use of the plaintiffs, or to pay their judgment, but simply to render the witness competent.

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Hermann v, Aaronson, 8 Post Date: Fri, 1 Aug 2008 7:23:05 +0000
Stuart v McDougal, 35 Me 398; Tuton v Gale, 5 JuR1137; Nyssen v Ruyse- nars, 5 Exc H 857; Know v Duncan, 9 Dow L Pr Ca S 179; Shackel v John- son, 7 CB 865, 62 E C L 863 On Defendant's Deat H Where defend- ant died insolvent before trial, bail were allowed to take out money they had deposited to defendant's us e Palmer v Reiffenstein, 8 Scott N R347- Defendant's SurrendeRWhere a third party deposits his own money in lieu of bail to the action, he may take it out of court upon defendant's sur- render and with defendant's CONSENT Douglas v Stanbrough, 3 A d E L 316, 30 E C L 101; Bull z/ Turner, 4 Dow L Pr Ca S 734 Stay on Appea L When defendant, on being arrested, deposited money in lieu of bail, and, on judgment being rendered against him, appealed and gave an undertaking to stay execu- tion held, that defendant was entitled to a return of the money so deposite d Lake v Haseltine, 18 Abb N Ca S ( N Y Supreme Ct) 320 Default Opene d Where a defendant's default is taken, but is subsequently opened and set aside, money deposited as bail may be returne d It is not irrevocably forfeited by the Default Arquette v Marshal County, 75 Iowa 191 4 Bull v Turner, 4 Dow L Pr Ca S Money which is deposited in lieu of bail is subject to the payment of the judgment in the action, where defend- ant does not put in bail or is not sur- rendered before judgment. The court cannot order such money to be re- funded to a third person, although he in fact deposited it. Hermann v, Aaronson, 8 Abb Pr, N S ( N Y C 6 Stultz v Henage, 2 Dow L Pr Ca S 806; Balls v Stafford, 2 Scott 426, 30 E C L 456; France v Camp- bell, 9 Dow L Pr Ca S 914 7 Qualifications of Bai L The rules of the common law as to the qualifications of bail are still enforced, except where expressly abrogated by statut e 1 Two sureties or bail are usually require d 2 They should be respectable persons, competent to Contract, and financially responsible for the amount for which they become liabl e 3 They must be housekeepers or freeholders, 4 and must be actually such at the time of justification ; it is not sufficient that they were such when the bond was signed and are soon to become such agai N 5 They should have sufficient property within the jurisdiction of the court.

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Anonymous, i Chit 502 Post Date: Fri, 1 Aug 2008 7:12:35 +0000
6 They should be subject Although, where money is deposited in lieu of bail, plaintiff is entitled to apply it in satisfaction of any judg- ment obtained by him against de- fendant, this rule does not apply to money deposited not in lieu of bail but merely as security for the sheriff and to indemnify him for the failure of sureties, in an undertaking given in the action, to justif Y Commercial Warehouse Co v Graber, 45 N Y 393, 2 Sweeney ( N Y) 638 1 Miles v Clarke, 2 Bosw ( N Y) 709; Wheeler -v Wilcox, 7 Abb Pr ( N Y Supreme Ct) 73 2 Rex v London, 2 Bin g 227, 9 E C L 390; Reg v Lane, 7 Dow L Pr Ca S 313; Rex v Surrey, i T g 32; Rex -v Middles'ex, 2 Dow L Pr Ca S 140; Wendover v Ball, Co L C Ca S Although only two bail are usually allowed, a defendant was permitted to put in three where it was shown that he was pooREaster v Ed- wards, i Dow L Pr Ca S 39 3 Hughes v Sterling, n Price 158; Levy's Bail, i Chit 285, 18 E C L 4 Anonymous, i Dow L Pr Ca S 127; Cripp's Bail, W W d 387; Saggers v Gordon, 5 Taunt 174 Who is a Housekeeper or FreeholdeROne who occupies a house for a lim- ited period is a housekeeper, although he pays neither rent nor taxe S Will- iams v Dethick, 2 Price 8 Contra, Slade's Bail, i Chit 502, 18 E C L 147; Walker's Bail, i Chit 316, 18 E C L 94 One who has not actually occu- pied a house is not a housekeeper, although he had hired it and was pre- vented from occupying it by sicknes S Hold's Bail, I Chit 288, 18 E C L A person is a householder, for the purposes of bail, when he rents and occupies an office in a building for business purpose S Somerset, etc, Sav Bank v Huyck, 33 How Pr ( N Y Supreme Ct) 323 Bail must be housekeepers at a place within the jurisdiction of the court; being such in some other place is not sufficient. Anonymous, I Dow L Pr Ca S 61; Hughes v Sterling, n Price 158 One who pays the rent of a house but does not occupy it is a house- keeper, and can justify, Savage v Hall, i Bin g 430, 8 E C L 580; Coehn v Waterhouse, 8 Moore 365, 17 E C L 108; but not so where he has underlet the whole house, although he pays rent. Anonymous, i Chit 502 A leaseholder for ninety-nine years was held qualified to act as bail, Anonymous, 2 Chit 96, 18 E C L 262 (by consent, however); so is a tenant by courtesy, Tomsey v Napier, 8 Taunt 148, 4 E C L 52; but a copy- holder in right of his wife is not, Anonymous, 2 Chit 97, 18 E C L 262 A leaseholder is not a housekeeper or freeholder, and cannot justify as bai L Smith's Bail, i Dow L Pr Ca S 499 That the house kept is a gambling- house is no objection to the bail, Anonymous, i Dow L Pr Ca S 61; nor is it that the house is a brothel, Gouge's Bail, 3 Dow L Pr Ca S 320 5 Weale z/ Wild, 12 Price 770 6 Wightwick v Pickering, Forest 138; Anonymous, I Chit 258 But where part of the property was out of the jurisdiction, it was held that the bail was goo d Beardmore v Phillips, 4 M S 173 Ownership of shares of stock in a corporation in actual existence and doing business is property on which bail may justif Y Pierrepoint v Brewer, 10 JuR79, 15 L J Exc H 81 to the process of the courts, and not be privileged from arreSt 1 8 Putting in Bai L Giving and justifying special bail is called putting in bail, and is usually required to be done within a limited time after service of proces S 2 1 Anonymous, i d R127, note; Coster v Watson, 15 John S ( N Y) 535; Bailey v Warden, 20 John S ( N Y) 129; Dickison v Coward, 3 Rich ( S Car) 49 Bail must reside in the county in which the action is brought, People v New York C p 19, Wen d ( N Y) 132; but if a nonresident is accepted as bail the recognizance is binding on both the principal and bail, notwith- standing the statute requires that the bail shall be residents of the stat e Co M v Ramsay, 2 Duv (Ky) 385 Who cannot be Bail Member of Par- liament.

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Harper v Tahourdin, 6 Post Date: Fri, 1 Aug 2008 6:52:36 +0000
A peer of the realm or a member of parliament cannot be bail, because they are not liable to the ordi- nary processes of the court S Duncan v Hill, i d R126, 16 E C L 23; Burton v Atherton, 2 Marsh 232; Gra- ham v Sturt, 4 Taunt 249 King's Servant. A servant of the king or of a foreign ambassador can- not be bai L Anonymous, I d * R, 127 note; Lock's Bail, i Dow L Pr Ca S 124 Attorney or Sheriff An attorney of the court or a sheriff cannot be bail, Miles v Clarke, 4 Bosw ( N Y) 632; Coster -v Watson, 15 John S ( N Y) 535; Wheeler v Wilcox, 7 Abb Pr ( N Y Supreme Ct) 73; Bailey v War- den, 20 John S ( N Y) 129; Craig v Scott, i Wen d ( N Y) 35; Brown v Lord, Kirby (Con N) 209; Johnson v Co M, 2 Duv (Ky) 410; but in Ver- mont a sheriff who arrests a debtor upon mesne process may himself be- come bail for such debtor by indorsing his own name on the back of the writ, in the manner required by statut e Meriam v Armstrong, 22 Vt 26; and in New Hampshire a deputy sheriff may be bail, Plumer v Brewster, 2 N H 473- It has been held that although at- torneys cannot be bail to the action, they may be bail to the sheriff Mann v Nattage, i Y J 367 note; Bell v Gate, i Taunt 162 And that an attorney is liable on his obli:tion as bail, although his becom- ing :)_il was contrary to a rule of court. Harper v Tahourdin, 6 M S 383 An undertaking by an attorney to give a bail bond to the sheriff is voi d Sedgworth v Spicer, 4 East 568; Lewis v Knight, i Dow L Pr Ca S 261 Persons Indemnifie d Persons who have been indemnified or promised in- demnity by the defendant's attorney cannot be accepted as bail, Anony- mous, i Dow L Pr Ca S i; Capon v Dillamore, I Bin g 423, 8 E C L 577; Vestris's Bail, i JuR335; Greensill v Hopley, iB p 103; but a request by defendant's attorney, without in- demnity, does not disqualify, Hunt v Blaquiere, 4 Bin g 588 Indemnifica- tion by the sheriff's officer does not disqualify bai L Chick's Bail, i Chit 714, not e Bail on Commissio N Where it was shown that the person offered as bail was to be paid therefor a commission on the amount for which he was to justify held, that he was disqualified to act as bai L FoxalPs Bail, 7 d R783, 16 E C L 322 Administrator of former Bai L Where appearance bail dies, his ad- ministrator cannot appear as such bai L Finley v McCarthy, I Cranch ( C C) 266 Indorser and AcceptoRThe indorser of commercial paper on which a suit is brought is a proper person to be bail in the actio N Robbins v Upton, 5 Cranch ( C C) 498 And it is no valid objection to a per- son offered as bail that he is an indorser on the bill of exchange on which the ac- tion is brought, Stevens's Bail, I Chit 305, 18 E C L 92; Harris v Manley, 2B p 526; or to the drawer of a bill, where the action is against the acceptor of the bill, Prince v Beesley, 4 Scott 37 The acceptor of a dishonored bill of exchange cannot be bail in an ac- tion against the drawer of the bil L Anonymous, I Dow L Pr Ca S 183 2 Grant v Gibbs, i Scott, 390 Such bail may be put in during va- catio N Rex v Middlesex, 4 TyR60; Baddeley v Adams, 5 T R170 Where special bail fail to justify, the sheriff may put in new bail, even after an attachment for not bringing in defendant's bod Y Hamilton v Jones, 6 Bin g 628, 19 E C L 182 Notic e The defendant, having obtained special bail, should serve notice thereof on the plaintiff, according to the rules of practic e 1 Such notice should correctly and truly describe the bail, 2 and state their residenc e 3 It may be accompanied by an affidavit made by the bail swearing to their qualificatio N 4 Such The sheriff may put in bail before the return of the writ Evans v Svvete, 2 Bin g 271, 9 E C L 410 Contra, as to bail belo W Birt v Rob- erts, i M M 177, 22 E C L 283 Defendant may put in special bail at any time before judgment, and he thereby discharges appearance bai L Bartle v Coleman, 6 Wheat.

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Frith's Bail, 2 Dow L Post Date: Fri, 1 Aug 2008 6:39:10 +0000
(U S) Section 9 of the Ohio Act of June I, 1831, providing that special bail shall be filed on the return day of writs of c A adres P, was held to be only direc tory; and it was always competent for the court, in their discretion, for good cause shown, to suffer bail to be put in at any day during the return ter M Enos v Aylesworth, 8 Ohio St 322 Not after Suit on Bail Bon d Where a bail bond is conditioned to put in special bail within a specified time, such special bail cannot be put in after action has been begun on the bail bond, although no default was en- tere d Pease v Pendell, 57 Mich No Service Necessary where Bail Give N If defendant puts in special bail where no process has been served, plaintiff may proceed as though the service had in fact been mad e Wright v Jeffrey, 5 Co W ( N Y) 15 1 Stevenson v Kimber, 3 Rawle (Pa) 272; Jaques v Hemphill, 3 HarR(De L) 503; Cobb v Darrow, 6 Co W ( N Y) 390; Nichols v Sutfin, 7 Co W ( N Y) 422; Wiles v Hill, i How Pr ( N Y) 154- Filing Bail-piec e Notice of bail should not be given until the bail-piece is actually filed, Britt v Van Norden, i John S Ca S ( N Y) 390; but actual notice of the filing is sufficient, Wiles v Hill, i How Pr ( N Y) 154 If a declaration is filed in chief, after notice received of special bail, it is a waiver of exceptions to the bill, although the bail-piece was not filed when notice was given; and the plain- tiff cannot proceed against the sheriff, although the bail are insufficient. People v Stevens, 9 John S ( N Y) -72 2 Notice should state whether the bail are housekeepers or freeholders, Wilson's Bail, 2 Dow L Pr Ca S 431; their addition or employment, as jewel- er, gentleman, etc, v Costar, 5 Taunt 554; v Pasman, 5 Taunt 759; Hamlet's Bail, i Dow L PrCa Ssoi; Anonymous, i Chit 494, note; Wood v Ray, 4 Dow L Pr Ca S 692; Moss v Heavyside, 7 d R772, 16 E C L 321; Fleming's Bail, I C M in; Fearnley's Bail, i Dow L Pr Ca S 40; Lanyon's Bail, 3 Dow L Pr Ca S 85; also their proper Christian names, White's Bail, 2 H W 134; Anony- mous, i Chit 88; Smith v Mellon, 5 Taunt 854 Error in such description is fatal, Wood -v Chadwick, 2 Taunt 173; Anonymous, I Moore 126, 4 E C L 392; but is waived by plaintiff's ex- cepting to the bail, Bigg v Dick, i Taunt 17 3 Smith's Bail, i Dow L Pr Ca S 499; Thomson v Smith, i Dow L Pr Ca S 340; Thompson's Bail, I Dow L Pr Ca S 497; Ward's Bail, i Dow L Pr Ca S 596; Johnson's Bail, i Dow L Pr Ca S 438; Fortesque's Bail, 2 Dow L Pr Ca S 541; Lanyon's Bail, 3 Dow L Pr Ca S 85; Anonymous, I Chit 495; Weddall v Berger, iB p 325; Parks' Bail, 2 H W 134; Tanner v Nash, i Price 400 If Defendant is in Custody the notice of bail must state or show it. Frith's Bail, 2 Dow L Pr Ca S 229; Fuller's Bail, 5 TyR491; Bullen's Bail, 3 Dow L Pr Ca S 422 Irregularities and Defects in the no- tice of bail do not render it null and void, or authorize the plaintiff to so treat it.

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E , the recognizance Post Date: Fri, 1 Aug 2008 6:25:17 +0000
Pugh v Emery, 4 d R30, 16 E C L 187; Rex v Middlesex, 3 TyR440, 2 Dow L Pr Ca S 5; Gil- mour v Brindley, 7 d R259, 16 E C L 288; Wigley v Edwards, 4 TyR235 2 Dow L Pr Ca S 282 Plaintiff should raise the objection when the bail appear to justif Y Bell v Forster, 8 Bin g 334, 21 E C L 309; Muir v Smith, 2 TyR742; Martin v Cell, 2 TyR166 But see Sywood v Dougherty, I Scott 79; Innis v Smith, 2 C J 634 4 Anonymous, i Dow L Pr Ca S affidavit should be to the effect that the bail are worth double the amount for which they become bail, over and above their just debts and every other sum for which they are then bai L 1 Exceptio N -If the plaintiff objects to the sufficiency of the bail, he should except thereto according to the practic e 2 Notice of exception should be made in writing, properly entitled, and should be served on Defendant 3 Justifyin g If duly excepted to, the bail must justif Y 4 Justifi- cation should be had at a time and place stated by defendant in a written notice served by hi M 5 Such time will be extended where good cause therefor is show N 6 Bail is not considered put in until the sureties have justified and an order allowing them has 115; Lanyon's Bail, 3 Dow L Pr Ca S 85; West v Williams, 2B A d 345 1 Darling v Hutchinson, 2 TyR491; Housley v Boyd, i Scott 698; Henshaw v Woolwich, I C J 150; Anonymous, I Dow L Pr Ca S 159; Smith's Bail, I Dow L Pr Ca S 499; Rogers v Jones, 3 TyR256; Delwarte's Bail, W W d 390; Worlison's Bail, 2 Dow L Pr Ca S 53; Lawson's Bail, 3 Dow L Pr Ca S 85; Naylor's Bail, 3 Dow L Pr Ca S 452; Hunt's Bai L 4 Dow L Pr Ca S 272; Carter's Bail, 5 Dow L Pr Ca S 577; De Burgh's Bail, 2 JuR922; Stevens v Miller, 2 M W 368 2 Ferris v Phelps, i John S Ca S ( N Y) 249; Caines z/ Hunt, 8 John S ( N Y) 358; Cummings v Meeker, 2 Miles (Pa) 83; Lazarus v Levaux, 4 Dow L Pr Ca S 353; Rex v Middlesex, 8 T R258; Goddard v Jarvis, 9 Bin g 88, 23 E C L 271, i Dow L Pr Ca S 278; Rex v Surry, 2 East 181; Banter v Levi, i Chit 714, 18 E C L 212 But see Reg v Middlesex, i H H Extension of Ti Me The time in which exception to bail may be taken may be enlarged by the court on good cause show N Zimm v Ritterman, 5 Robt ( N Y)6i8 When cannot Except. Persons not excepted to as appearance bail cannot be excepted to as special bai L Dun- lops v Laporte, I He N M ( Va) 22 3 Rex v Middlese X 5B C 389; Anonymous, I Chit 375; Oldham v Burre'll, 7 T R26; Felton v King, I JuR707, 5 Dow L Pr Ca S 658 Such exception should be entered in the bail-boo K Thwaites v Gal- lington, 4 d R365 16 E C L 205; Rex v Middlesex, 7 d R264, 16 E C L 289, 8 d R149, 16 E C L 340; Hodson v Garrett, i Chit 174, 18 E C L 60; Hanwell's Bail, 5 Dow L Pr Ca S 425 Withdrawin g An exception to bail may be withdrawn and justification waived before the expiration of the time for justificatio N People -v Su- perior Ct, 20 Wen d ( N Y) 607 4 Chapin v White, 2 How Pr ( N Y) 105; Louis v Mitchell, 2 Hill ( N Y) 379; Hill v Jones, n East 321 The taking of a recognizance of bail out of court is only de dene esse, and where excepted to the bail must justif Y Poe v Mounger, i Cranch ( C C) 145 But see Jones v Badger, 5 Bin N (Pa) 461 Bail who surrender their principal need not justif Y Anonymous, 2 W B L 758- 5 Rex v Middlesex, 5B C 389; Denton's Bail, i Dow L Pr Ca S 2; Lewis v Gadderrer, 56 Ai d 704, 7 E C L 235; Rogers v Mapleback, I H B L 106; Aldridge v Schroder, i Smith 75; Anonymous, I TyR378; Gumming v Pullen, i Scott 638; Anonymous, I Chit 174 6 Gilbank's Bail, 9 d R6, 22 E C L 381; Anonymous, I Chit 6, 18 E C L 12; Bold's Bail, i Chit 228, 18 E C L 85: Slade's Bail, i Chit 502, 18 E C L 147; Spurdens v Mahoney, i Chit 309; Hughes v Sterling, n Price 158; Hodges v Meek, 3 Moore 240 4 E C L 432 But not where good cause is not show N Well's Bail, I Bin g 359; 8 E C L 547; Gablentz's bail, i H W in; George v Barnsley, i Chit 8, 18 E C L 13 Before Different OfficeRJustification may be taken before a different officer from that named in the notic e South- erland v Sheffield, 2 Wen d ( N Y) 293 At Chamber S Bail may justify be- fore a judge at chambers in vacatio N Fenn v Smith, 6 John S ( N Y) 124 1 Holland v White, 2B p 341; Rex v Middlesex, 4 T R493, 2 Chit 99, 2 Dow L Pr Ca S 116 Bail may be rejected, after allowance thereof, on good cause shown, as fraud, or perjur Y Anonymous, I Chit 116; Gould v Berry, i Chit 143, 18 E C L 55; Shee v Abbott, 5 Moore 321, 2B p 619; Burling v Waters, 4 M p 125 Where one of the bail is rejected it operates as a rejection of both of them, *'. E , the recognizance is rejecte d Lewis v Gadderrer, 5B Ai d 704, 7 E C L 235 A rejection of bail may be reconsid- ered, as where, after bail were re- jected for insufficiency in the state- ment of their debts, they were after- wards accepted on production of their books, and showing positively their debts and the state of their affair S Clark v Vestris, i JuR335 Opening Justificatio N Where bail have properly justified and been al- lowed, such justification will not be set aside on account of the excus- able absence of plaintiff's attorney at the time of justificatio N The sheriff, having been legally released from lia- bility by such justification, cannot again be made liabl e Lewis v Ste- vens, 65 How Pr ( N Y Ct App) Liability of Bail not Justifyin g If bail fail to justify within the time allowed by the practice, they cease to be bail and are not liable as suc H Clapp v Shutt, 44 Barb ( N Y) 9 Plaintiff cannot hold them liable by giving notice that he waives his ex- ception to the M Trotter v Hawley, i Co W ( N Y) 226; Waterman v Al- len, i Co W ( N Y) 60; Cooper v SpiceR2 Co W ( N Y) 619 Right and Liability of Sheriff New York Inasmuch as a sheriff becomes bail when the sureties given by a de- fendant arrested under the New York Code fail to justify, he therefore may rearrest Defendant Seaver v Gen- ner, 10 Abb Pr ( N Y Supreme Ct) 256; Metcalf v Stryker, 31 Barb ( N Y) 62 Upon an arrest under the code, if bail that the sheriff has accepted fail to justify, the sheriff becomes liable as bail to the action; and his liability is commensurate with that of any other bai L Metcalf v Stryker, 31 Barb ( N Y) 62, 10 Abb Pr ( N Y) Defendant was arrested on an order of arrest, and gave bail as required by the ordeRThe sureties justified be- fore a commissioner of deeds, and, the judge approving the undertaking ex parte, the defendant was release d Upon service of the undertaking, plaintiff's attorney gave notice of the exception to the sureties, which was returned because of the aforesaid ap- prova L A motion to compel the re- ceipt of such notice was denied, and it was ordered that if plaintiff declined to permit the approval of the sureties to stay, the order of arrest might be considered vacate d It was held that this ruling was erroneous; that the approval was merely formal and did not bind the plaintiff; that he had a right to examine the sureties; and that it was only after such examina- tion, and the final approval thereon, that the sheriff could be exonerated from liabilit Y Hetch v Bishop (SupeRCt), 20 N Y Supp 837 Waiver of Exceptio N Where plaintiff, on the bail failing to justify, proceeds at once against them or the defendants, he waives his exception theret O He should, as formerly, rule the sheriff to bring in defendant's body, and compel him to find good bail or pay the money into court.

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Jones v Bunn, 2 Post Date: Fri, 1 Aug 2008 6:14:15 +0000
White v Fitler, 7 Pa St 533- In New York, after exception to special bail, the plaintiff may waive such exception, without requiring a justification, provided the waiver be before the expiration of the time of justificatio N People v Superior Ct, 20 Wen d ( N Y) 607 See Boyd v Weeks, 6 Hill ( N Y) 71 If bail do not justify within the time allowed by the rule of the court, they cease to be bail, and cannot be held by the plaintiff's giving notice that he waives the exceptio N People v Judges, i Co W ( N Y) 54 Plea before Justificatio N Until bail is perfected by justification a plea served is a nullity; nor does justifica- tion make good a plea served prior thereto unless the same was served de bene ess e Adams v Minton, 6 Co W ( N Y) 56 See also Briggs v Rowe, 7 Co W ( N Y)so8 is served and the bail are excepted to, costs are sometimes allowed to the party successful on justificatio N 1 Adding Bai L Where the bail fail to justify, it is usual to allow new bail to be added or substituted, under an order of the court or a judge, which must generally be obtained therefoR2 9 Bail Bonds and Recognizances To Whom Give N A bail bond should be given to the court or to the officer (who is usually the sheriff) authorized by law to take it ; and if not so given it is voi d 3 Arrest Illega L If for any reason the arrest of the defendant was illegal, no power exists to require a bail bond, and a bond given is voi d 4 Executio N A bail bond should be duly executed by both the principal and the suretie S 5 1 Bowman v Russell, 2 TyR744; Grant's Bail, 3 Dow L Pr Ca S 165; Evan's Bail, i Dow L Pr Ca S 384; De Bode's Bail, i Dow L Pr Ca S 368; Del- warte's Bail, W, W d 390; Lewis v Glossop, 2 C, M R655; Jour- dain v Gunn, 2 TyR491 2 Vestris's Bail, i JuR335, 4 Scott 394; Rex v Essex, 2 Dow L Pr Ca S 782; Bird's Bail, 2 Dow L Pr Ca S 583; Key v M'Intyre, 2 M W 347 Where bail were rejected on techni- cal grounds, leave to add new bail was refuse d Elliott v Gutteridge, 6 Dow L Pr Ca S 255 Where bail have been rejected a new bail-piece must be put i N Lewis v Gadderrer, 5B Ai d 704, 7 E C L 235 But where the bail become incom- petent after the recognizance is com- pleted, defendant cannot be required to put in new bai L Reg v Shirley, 12 L J QB 346 Allowance Discretionar Y An appli- cation to change bail is addressed to the discretion of the court, whose decision thereon will not be reversed on appeal unless for good cause show N Colgate v Hill, 20 Vt 56 Notice of New Bai L If defendant in- tends to add new bail, he should give notice to that effe Ct A notice that he intends to perfect bail is insufficient. Brown v Williamson, 8 N J L 363 Sheriff Takin g A sheriff may take a new bond and abandon an illegal one which he originally too K State v McKeown, 12 La An N 596 3 Handley v Ewing, 4 Bibb (Ky) 505; Jackson v Hunter, 6 T R71; Rogers v Reeves, I T R418 It should be executed in the pres- ence of the officer authorized to take it. Jones v Bunn, 2 Mete (Ky) 490; Covington v Co M, 3 Bush (Ky) 478 Sheriff of County where Give N A bail bond should be taken to the sheriff of the county in which it is given, and not to the sheriff of another county, although the action is pending in such other count Y Conant v, Sheldon, 4 Gray (Mas S) 300; Smith v Adams, 12 Met (Mas S) 564 Deputy Sheriff Where the statute provides that appearance bail may be executed to the officer making the ar- rest, such bail is properly made to the deputy sheriff if he makes the arreSt Wilcox v Ismon, 34 Mich 268 In Vermont bail is not taken by way of a bond to the sheriff, but by means of the indorsement upon the back of the writ direct to the creditoRMeriam v Armstrong, 22 Vt 26 Poor DebtoRA recognizance of bail for a poor debtor not taken by a court or person authorized by statute to take such recognizance, is voi d Stack v O'Brien, 157 Mas S 374; Brayman v Whitcomb, 134 Mas S 525 4 Sargent v Roberts, 52 Me 590; Stearns v Veasey, 33 N H 61; Pauer v Simon, 6 Bush (Ky) 514; Brown v Way, 33 Ga 190 Where the court has no jurisdiction of the subject-matter of a suit brought therein, a bail bond given in such action is voi d Pike v Neal, 73 Me 513- 5 Bean v Parker, 17 Mas S 591 Signature Rhode Islan d One who indorses a writ or process in order to become bail, under Ge N StatRI, C 196, 8, must write his Christian name in full, otherwise there is no statutory liabilit Y Dresser v Fifield, 12 RI 24 Notary without Authorit Y A notary has no power to take an acknowledg- ment of special bail, and a recogni- General Requisite S A bail bond should substantially show the title of the cause, the amount of the claim, at whose suit the arrest is made, and when and where the process is returnabl e 1 zance of such bail acknowledged be- fore a notary is voi d Clink v Rus- sell, 58 Mich 242 Deliver Y To give it validity a bond must be delivered by the party him- self or by his attorney duly authorize d Harrison v Tiernans, 4 Ran d ( Va) In Blan K A bail bond executed be- fore the condition therein is filled up is voi d Powell v Duff, 3 Cam P 181; Holding v Raphael, 5 N M 655; Perry v Dobbins, 2 Bailey ( S Car) But it will be good, although the names are not inserted in the blanks for that purpose in the body of the bon d Neil v Morgan, 28 111 524 See also Raynolds v Gore, 4 Leigh ( Va) 276 The Genuineness of a recognizance of special bail may be disproved by de- fendants in an action brought thereo N Elliott v Green, 10 Mich 113 1 Churchill v Perkins, 5 Mas S 542 But see Palmer v McGinnis, Har d (Ky) 513; McClean v Lillard, I Bibb (Ky) 146; Ralston v Love, Har d (Ky) 509; Stevens v Clancey, I John S ( N Y) 521; Payne v Britton, 6 Ran d ( Va) 101; Colburn v Downes, loMas S 20; Bull v Clarke, 2 Met (Mas S) 587; Rowland v Seymour, 2 Met (Mas S) 590 It should be seale d Peyton v Moseley, 3 TB Mo N (Ky)8 O But not where the statutory form re- quires no sea L Scott v Brokaw, 5 Blackf (Ind)457 And a sheriff who has taken a bail bond without seals annexed to the names of the sureties is not justified by this informality in afterwards de- taining the person arreste d Delies- seline v Bunc H Har P ( S Car) 226 It should be to the sheriff by the name of his offic e Rogers v Reeves, i T R422; Loker v Antonio, 4 Mc- Cord ( S Car) 175; Hunter v Gilham, I 111 82; Handley v Ewing, 4 Bibb (Ky) 505; Conant v Sheldon, 4 Gray (Mas S) 300 It should be conditioned in such manner that performance is pos- sibl e Graham v Crawsbaw, 3 Lev 74; Fanshor v Stout, 4 N J L 319 It should be for a proper Amount Ellis v Robinson, 3 N J L 707 It should be conditioned for defend- ant's appearance at the place and day named in the writ Blending v Rogers, 2 Brev ( S Car) 394; Holmes v Chadbourne, 4 Me 10 It should describe the action suffi- ciently to distinguish it, Ralston v Love, Har d (Ky) 509; Churchill v Perkins, 5 Mas S 542; Colburn v Downes, 10 Mas S 20; but need not disclose the nature of the suit, Owen v Nail, 6 T R702 Number of Suretie S To relieve the sheriff there must be two or more suretie S Rex z/ London, 2 Bin g 227, 9 E C L 390; Long v Billings, 9 Mas S 482; Rice v Hosmer, 12 Mas S 129; Cromelines v Beldens, i Wen d ( N Y) 108 Contra, Bennett v Brown, 5 Rich ( S Car) 347 But the bond will bind the surety if only one surety be take N Caines - U Hunt, 8 John S ( N Y) 358; Lane v Smith, 2 Pic K (Mas S) 284; Glezen v Rood, 2 Met (Mas S) 490; Johnson v Williams, 2 Overt.

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Kelly v Co M, 9 Post Date: Fri, 1 Aug 2008 6:03:20 +0000
(Tenn) 178 Statutory provisions as to the num- ber of sureties on a bail bond are direc- tory only, and a bond executed by a less number than the statute requires is vali d Arrenton v Jordan, 4 Hawk S (N Car) 98; Lane v Smith, 2 Pic K (Mas S) 284; Johnson v Williams, 2 Overt. (Tenn) 178 Recitals Misrecital S A misrecital of the record in a bail bond or the omission of the name of one of the de- fendants will not vitiate it. Kelly v Co M, 9 Watt S (Pa) 43 If the bail bond recites an arrest un- der a capias in case, and the record shows the action to have been in tres- pass, the variance is immaterial, Devereux -v Esling, 7 Pa St 383 Judgment on a bond which recites the writ at the suit of A, administra- tor, when the writ is at his suit as ex- ecutor, will not be reverse d Payne v Britton, 6 Ran d ( Va) 101 A variance in the amount of the debt stated in the writ and in the re- cital of the bond is not fatal if the bond contains other descriptions which show that it was taken in the proper suit.

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