Laws

Eade, 2 At K 504 Post Date: Fri, 1 Aug 2008 10:42:07 +0000
(U S) 336 _ A bill which makes out a case for specific performance of an award, but which does not pray for general or special relief, is sufficient, if no objec- tion is taken by the defendant and he answers generally the allegations of the bill and submits himself to the decree of the court on the merits of the complaint. Smith v Smith, 4 Ran d ( Va) 95 4 DemurreRA bill to enforce specific performance of an award is demurrable if the award as set out in the bill is bad on its face ; * or if the award directs something illegal, which does not vitiate the whole of it, the bill will be demurrable so far as it seeks the enforcement of the illegal part of the awar d 2 Iv ACTIONS TO SET ASIDE AWAKD 1 Jurisdiction Fraud and Mis- take of Arbitrator of Part Y In most jurisdictions, 3 except where changes have been effected by statutory enactments, 4 courts of 1 Hopcraft v Hickman, 2 Si M St U 130 2 Bishop v Bishop, I Rep in C H 75- 3 California Muldrout v Norris, 2Cal74 Connecticut Bridgeport z Eisen- man, 47 Con N 37; Bulkley v Stewart, I Day (Con N) 130 Georgia Tyler -v Stephens, 7 Ga 278 Minnesota Daniels v Willis, 7 Min N 374; Dewey v Leonard, 14 Min N New Hampshire Rand v Reding- ton, 13 N H 72; Tracy v Herrick, 25 N H 381 New York Underbill v Van Cort- landt, 2 John S C H ( N Y)366; Emmet v Hoyt, 17 Wen d ( N Y)4io; Bar- low v Todd, 3 John S ( N Y) 367; Newland v Douglass, 2 John S ( N Y) 62; Smith v Cooley, 5 Daly ( N Y) 409; Herrick v Blair, i John S C H ( N Y) 101 Tennessee Hardeman v Burge, 10 Yerg (Tenn) 202 Ver Mont Emerson v Udall, 13 Vt West VirginiaWheeling Gas Co v Wheeling, 5 W Va 448; Dickin- son v Chesapeake, etc, RCo, 7 W Va 390; Fluharty v Beatty, 22 W Va 698 United State S Frick v Christian, 1 Fed Rep 250; Hartford F In S Co v Bonner Mercantile Co, 44 Fed Rep 151, 56 Fed Rep 378 Englan d Lonsdale v Littledale, 2 Ve S JR452; Ives v Metcalfe, i At K 63; Lingood i. Eade, 2 At K 504; Greenhill v Church, 3 Rep in C H 89; Tittenson v Peat, 3 At K 529; Ridout v Payne, 3 At K 486; Anderson v Darcy, 18 Ve S 447; Braddick v Thompson, 8 East 344; Clapham v Higham, i Bin g 87; Porter v Pitman, 2 d R266; Chicot v Lequesne, 2 Ve S 315; Aston v George, 2B Ai d The Circuit Court as a court of equity has jurisdiction of an action to set aside for gross error in computation by the arbitrators an award of arbi- trators chosen to make a division of assets between two distinct township S Algona DiSt T P v Lotts Creek DiSt T P , 54 Iowa 286 Federal Courts Ju r i sdi ctional Amount.

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A delay of five months Post Date: Fri, 1 Aug 2008 10:25:53 +0000
Where parties who had in- sured property subsequently injured submitted jointly to arbitrators, and after the award was made joined in a bill to set it aside, the fact that the lia- bility of some of them under the award was less than two thousand dollars was not ground to dismiss the bill as to them, since the amount in controversy was the amount of the award in tot O Hartford F In S Co v Bonner Mer- cantile Co, 56 Fed Rep 378 Exceptions Massachusett S In Bean v Farnam, 6 Pic K (Mas S) 273, the court says: " As our chancery powers do not authorize us to vacate or cor- rect an award, there would be a fail- ure of justice if the merits of an award might not in some cases be re- examine d In cases therefore of cor- ruption in the arbitrators, or where they exceed their authority, or there are gross errors or mistakes in the award, relief may be granted, under our system of jurisprudence, by allow- ing the defendant to plead the matter in an action on the awar d" See also Mickles v Thayer, 14 Allen (Mas S) 114 For further exceptions- see subdivi- sion Misconduct or Mistake of Arbi- trators and notes, and subdivision Fraud or Misconduct of Successful Party and notes, under title I, section 6 4 See subdivision Misconduct or Mistake of Arbitrators and notes, and subdivision Fraud or Misconduct of Successful Party and notes, under title I, section 6, for statutory changes in Americ A Englan d Where an award is made Actions to Set A WARD S Aside Awar d equity have jurisdiction to set aside an award for fraud, miscon- duct, or mistake of arbitrators, or for fraud or misconduct of the successful party to the arbitration, the old common-law rule being that such matters were not available for impeaching the award in an action at law, and that the only remedy for the party aggrieved was by assailing the award in equit Y 1 Excess of Authorit Y Equity also has jurisdiction of an action to set aside an aw^rd on the ground that the arbitrators exceeded their authority, and that the award is uncertain and inconclusiv e 2 . Time to Bring Suit. A delay of five months after the signing of an award before suing to set it aside is not so unreasonable as to bar the right of a party to bring action to set aside the award, where no acts of any kind were done after the date of the award and before the filing of the bill which affected either party or changed their relative situation S 3 3 The Bill A PARTIES Plaintiff S Where several parties, hav- ing a common interest in a matter in dispute, join in a submission thereof to arbitration, and a single award is made, they may join in bringing a bill to set it aside, since they have a common interest in the suit.

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Hart v Kennedy, 47 Post Date: Fri, 1 Aug 2008 10:08:13 +0000
4 Defendant S Usually, in an action to set aside an award, the ar- bitrators are not necessary parties defendant to the bil L 5 If, how- ever, the bill charges fraud on the part of the arbitrators, they may be joined as defendant S 6 b ALLEGATION S A bill to set aside an award should state the facts on which the right to set aside the award is based ; mere general allegations are insufficient. 7 Thus a bill to set aside an award for partiality or incompetency, fraud or mistake of the arbi- trators should specifically aver the facts in which the objection to the award consist S 8 1 Sumter v Life, Dick 474; Veale 7 Tittenson v Peat, 3 At K 529; v Warner I Saun d 327 a, note 3; Routh v Peach, 2 AnstR519; Hart v Dick v Milligan, 2 Ve S JR23; Wills Kennedy, 47 N J E Q 51 See also v MacCarmick, 2 Wil S 148; Riddell Bowden v Crow, 2 Tex Civ App v Sutton, 5 Bin g 200; Southard v 594- 3 Baltimore, etc, RCo v Canton Phillips v Phillips, 81 Ky 147; Bow- Co, 70 Md 405 den v Crow, 2 Tex Civ App 591 4 Hartford F In S Co v Bonner A cross-bill charging arbitrators with Mercantile Co, 44 Fed Rep 151 incompetency and partiality, but which 5 Knowlton v Mickles, 29 Barb, does not allege in what the incompe- ( N Y) 469; Stewart v East India Co, tency consists, but merely alleges 2 Ver N 380; Hartford F In S Co v that the party impeaching the award Where it is desired to set aside the award on the ground that it is against the evidence, all the evidence should be set forth, and in addition thereto it should be alleged that it is all the evidenc e 1 4 DemurreRA demurrer to a bill to set aside an award will lie where the grounds on which it is sought to set aside the award are such as a court of equity cannot consider ; 3 but it will not lie to a bill to set aside an award for fraud on the part of the arbitrator on the ground that the parties have proceeded at law, and that there would be a remedy in a court of la W 3 Where it is sought to set aside an award for mistakes of fact by the arbitrators, a demurrer to the bill will not be sustained if it appears that the mistakes on which the demand for relief was based were not called to the arbitrators' attention, and that if the actual facts had been known to the arbitrators the award would have been for a larger Amount 4 v AWARD AS DEFENSE TO EQUITABLE ACTION 1 In Genera L An award may be pleaded as a defense to a bill in equity to set aside the award, 5 or to a bill for an accounting by alleging that the has no knowledge or information re- specting the qualifications of the ar- bitrators and therefore charges that they are not persons of the character and qualifications required by the ar- bitration is manifestly insufficient. Hart v Kennedy, 47 N J E Q 51 A cross-bill to set aside for partiality of arbitrators an award requiring de- fendant to lower a certain dam is in- sufficient where it merely alleges that one of the arbitrators, during the prog- ress of the arbitration, made a re- mark to one person that the dam must be lowered, and to another that the third arbitrator was under his influ- ence and would do whatever he wanted him t O Hart v Kennedy, 47 N J E Q 51- Evidenc e In a proceeding to set aside an award it cannot be shown that one of the arbitrators was guilty of misconduct in that he accepted the hospitality of a party to the arbitra- tion, where the bill did not allege such facts as a ground for setting aside the awar d Hartford F In S Co -v Bonner Mercantile Co, 56 Fed Rep 380 1 Overby v Thrasher, 47 Ga 10; Anderson v Taylor, 41 Ga 16; Tom- linson v Hardwick, 41 Ga 547 2 Pitcher v Rigby, 9 Price 83 3 Lonsdale v Littledale, 2 Ve S JR453, in which the court says: "That proceeding under the authority of the court of law may be perfectly incom- petent, for that which would subvert the award may arise out of the answers inequit Y There is a great difference between compelling that discovery in answer to pointed interrogatories and affidavits at la W There you cannot press them to make a full answe R" See also Padley v Lincoln Water Works Co, 2 M g 68 4 Frick v Christian County, i Fed Rep 250 5 Brown v Brown, 2 C H Ca S 140; Allardes v Campbell, Bun b 265; Anonymous, 3 At K 644 Award Made after Bill File d It would seem that an award made after a bill was filed could not be made available by plea as a defens e See Rowe -v Wood, I J W 315, and Dry- den v Robinson, 2 Si M St U 529, the syllabus of which latter is incorre Ct Agreement to Arbitrat e A mere agreement to arbitrate can no more be pleaded in bar to a bill in equity than it can be availed of as a defense in an action at la W Street v Rigby, 6 Ve S 815; Wood v Copper Miner's Co, 25 L J C p 166 An agreement to submit the affairs of a partnership to arbitration, and that the submission shall be made a rule of a court of common law, cannot be pleaded in bar to A suit in equity seeking discovery, complaining of the plaintiff being sued in actions, and praying for a receiver, although be- fore the bill was filed arbitrators were appointed, and since the bill was filed the submission has been made a rule of the court.

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5 Plea of Arbitrator S Post Date: Fri, 1 Aug 2008 9:56:15 +0000
Cooke v Cooke, L R, 4 E Q 77, 30 L J C H 480, 15 W R981 matter in question was comprehended in it. 1 So the award may also be pleaded as a bar to a bill to foreclose a mortgag e 2 2 How Taken Advantage of A plea of an award alone to a bill to set aside the award for corruption or mistake of the arbitra- tor, 3 or fraud on the part of the successful party to the arbitra- tion, should contain a denial of the 'fraud, corruption, or mistake charged, and be supported by an answer also denying the fraud, corruption, or mistak e 4 Unnecessary to Plead Awar d But it has been held that, on a bill filed to set aside an award, the defendant may rely on the award without pleading it. 5 Plea of Arbitrator S Where arbitrators are made parties to a bill to set aside their award on the ground that they were corrupt and partial they may plead their award to the bill ; but the plea must contain an averment denying the fraud and corruption charged, and be supported by an answer also denying the charges of the bil L 6 Subject-matter of Action within Sub- missio N An award cannot be pleaded as a defense to an action unless the subject-matter of the action is clearly within the submission to arbitratio N Suydam v Johnson, 16 N J E Q 112 1 Burton v Ellington, 3 Br O C C 196; Farrington v Chute, I Ver N 72 On a bill for account after plea of award on the ground of matters stated not to have been comprehended in it, it must clearly appear that the award was not final, or that a plea of award will be deemed goo d Routh z/ Peach, 3 AnstR637 2 See Merritt v Merritt, n 111 565 3 Evans v Harris, 2 Ve S B 364; Butcher v Cole, i AnstR95 Statutory Submission Exception S If, however, the submission is under the statute, a plea of an award is suffi- cient without averments in the plea, or an answer in support of the plea denying the charges impeaching the awar d Yates v Baynard, C p C 490 Where a bill for an account alleged that matters in question had been submitted to arbitration and that a pretended award had been made, but charged circumstances to invalidate the award, a plea of submission under the statute and an award made in consequence of it present a good de- fense to the bil L Yates v Bainard, 4 L J C H 61 Exceptions other than Statutor Y Where a bill charges an award to have been obtained corruptly, the plea should merely set up the award, and should not contain averments denying the charge of corruptio N The an- swer supporting the plea should con- tain the denial of those charges, and the plea would be overruled by the answeRPope v Bish, i AnstR59, criticised and disapproved in Bayley v Adam S 6 Ve S 586 4 Gartside v Gartside, 2 AnstR735; Allardes v Campbell, Bun b 265 But see Edmundson v Hartley, I AnstR97, in which it is held that an award im- peached in the bill must be pleaded nakedl Y 5 Tyler v Stephens, 7 Ga 278, in which it is said: " The plaintiff in error insists that the defendant cannot avail himself of the submission and award in defense but by his plea or cross-bil L How can this be so when the complaint sets out the submission and award and charges that they are void ? The answer sets up the award in defense, it being responsive to the bil L Both the bill and answer put it in issu e" 6 Lingwood v Croucher, 2 At K 395; Rybott z/ Barrell, 2 Eden 137 If parties agree to make the sub- mission to an award a rule of the court and to be restrained from bring- ing a bill in equity, the arbitrators may, though the award is defective, plead it in bar of a bill to set aside the award for fraud on their part.

Autor of the post: Undefined

, bail to the sheriff, called Post Date: Fri, 1 Aug 2008 9:39:40 +0000
Lin- good v Croucher, 2 At K 395 I IN CIVIL CASES 1 Definitions Bai L In civil actions the term bail is usually applied to those persons who become sureties or bind themselves either to satisfy the plaintiff of his debt and costs or to surrender the defendant into custody, provided judgment be against defendant in the action and he fails to satisfy it. 1 The term is also sometimes applied to the security or undertaking given by the suretie S 2 'Common and Special Bai L Bail was formerly divided into two kinds : viz., bail to the sheriff, called also common bail, or bail below ; and bail to the action, known also as special bail, or bail abov e 3 The distinction between these two classes of bail still exists in some jurisdiction S 4 Common bail, or bail to the sheriff, was given merely to secure the appearance of the defendant, and was so con- ditioned ; 5 while special bail, or bail to the action, was given to secure satisfaction by the defendant of any judgment that might be obtained in the action, and was so conditione d 6 1 Bouvier Law Diet; Abbott Law 6 Rapalje Law Diet; Wharton Law Diet Lexico N 2 Rapalje Law Diet Special Bail, or bail above, are per- 3 Abbott Law Diet; 3 Blackstone sons who undertake jointly and sever- Co M 290 allythat if the defendant becondemned 4 Rapalje Law Diet in the action he shall either satisfy the 5 Wharton Law Lexicon; 3 Black- costs and condemnation or render him- stone Co M 290 self into custody, or that they will do Bail Bon d The instrument containing the obligation of bail to the sheriff was called a bail bon d 1 Eecognizanc e The instrument containing the obligation of spe- cial bail, or bail to the action, is usually called a recognizanc e 2 Bail-piec e When special bail is put in, the bail are given a certificate or memorandum of the fact, which is called a bail- piec e 3 2 Right to Give Bai L In all cases the defendant has a right to give bail and be released thereon, when arrested in a civil action, when the bail offered by him is proper and sufficient.

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Redfield v Frear, 9 Post Date: Fri, 1 Aug 2008 9:22:51 +0000
4 The sheriff is bound to accept proper bail when offered, and is liable for his failure to do So 5 so for hi M 3 Blackstone Co M 291; i Arc H Pr 102 A Bail Bond is a written undertaking or obligation given to the sheriff, and conditioned for the appearance of the defendant at the time and place speci- fied in the writ I Tidd's Pr 224, 225; 3 Blackstone Co M 290 2 Recognizance (in civil cases) is an obligation entered into by bail, con- ditioned for the payment of the debt, interest, and costs recovered by the plaintiff, under certain contingencie S It differs from a bail bond in that its object is to secure the presence of the defendant, to perform or suffer the judgment of the court; while the bail bond is merely for the purpose of se- curing the appearance of defendant in court and for the protection of the sheriff in not strictly enforcing the writ Bouvier's Law Diet 3 Bouvier's Law Diet A Bail-piece is merely the title of a slip of parchment in which the recog- nizance or special bail is transmitted to the court. 3 Blackstone Co M 291 The bail-piece given on putting in special bail is a written memorandum stating the undertaking entered into by special bail, signed by them, and duly acknowledged before an officer authorized by law to take the acknowl- edgment thereof I Tidd' S Pr 62; Green v Ovington, 16 John S ( N Y) Waiver of The giving of a bail- piece is waived by the failure of the sureties to demand it; and the failure to give it when not demanded does not invalidate the bond or prejudice the plaintiff Wilcox v Ismon, 34 Mich 271 4 Richards v Porter, 7 John S ( N Y)i37; Posterne Y Hanson, 2 Saun d 59; Smith v Hall, 2 Mo d 32 By statute 23 He N V I, C 9, sheriffs were required to let to bail persons arrested in civil actions, on their giving sufficient sureties; and this provision is practically the same as that now in forc e 32 33 Viet, C 62, 83 Liberty after Bai L One who has given bail to the sheriff has a right to his liberty until the failure of such bail to justify, upon exception duly taken theret O Arteaga v Conner, 88 N Y 403 Custody of New Bai L By the giving of a supersedeas bond with new bail, the defendant is deemed to be trans- ferred to the custody of the new bail, and is no longer in the custody of the bail on his former bon d Smith v Craig, 59 Ga 882 At what Time Give N In New York bail in a civil action may be given at any time before execution against the body of defendant is issue d Bostwick v Goetzel, 57 N Y 582 5 Boucicault v Boucicault, 21 Hun ( N Y) 431, 59 How Pr ( N Y) 131; McCallum v Barnard, 58 How Pr ( N Y Marine Ct) 169 A sheriff is bound to release a pris- oner arrested on mesne process, on being tendered a bond with reasonable suretie S Matson v Booth, 5 M S 223 To render a sheriff liable for refus- ing to take bail, a good bail bond with sufficient sureties must be tendered to hi M Lovell v Plomer, 15 East 320 Although one arrested in a civil ac- tion has a right to be bailed, yet the sheriff is not compelled to go about with him to enable him to procure bai L Page v Staples, 13 RI 306 3 When Bail may be Required A IN GENERA L In England and most of the United States imprisonment for debt has been abolished, and consequently the right to arrest a defendant in a civil action and compel him to give bail has been much restricted, and is now governed by the statutes and rules of the different jurisdictions, which are not unifor M In general it is only allowed where defendant is charged with some wrong, and not for the mere failure to pay a Debt 1 See article EXECUTION S Holding to Bail Twic e Where a defendant has once been held to bail in a civil action he cannot be again held to bail for the 1 Hammer v Sadner, 41 Le g Int (Pa) 376; Bowen v Burdick, 3 Pa L leave the stat e Renninger v Dillon, 2 Pa DiSt Rep 819; Zeller RKatzen- In England bail in civil action is now required in only a few cases, specified by statute; and in such cases nor v Welsh, 29 W N C (Pa) 92; Scott v Crum, i Pearson (Pa) 196; M'Cawley v Smith, 4 Yeates (Pa) 193; Knickerbocker L In S Co v Eccle- six months on failure to give bai L 32 33 Viet, C 62; Debtor's Arrest Act of 1869 Except where the charge is of a gross natur e Campbell v, Gilmore, arrest in a civil action is to compel the defendant to give bail in those cases where, by law, bail can be re- quire d Gosline v Place, 32 Pa St 520 Bail has been required in actions for : Breach of Promis e Hood v Sudd- reth, in N Car 215; Weaver v Kli Me 12 Pa Co Ct Rep 363 In Actions upon Bond S Henderson v Morrison, Sneed(Ky) 181; Barbour v Russel, 3 Cranch ( C C) 47; Jenkins v Porter, 2 Cranch ( C C) 116 Contra, Ruffin v Call, 2 Wash ( Va) 181 In Actions for Criminal Conversatio N Dyott v Dunn, 2 Chit 72, 18 E C L In Actions for Deceit. Redfield v Frear, 9 Abb Pr, N S ( N Y Supreme Ct) 449; Cox v Highley, 100 Pa St 252 Frau d Martin v Freed (Supreme Ct), 50 N Y St Rep 854, 21 N Y Supp 302 ; Mathushek Piano Mfg Co v Pearce (Supreme Ct), 50 N Y St Rep 677, 21 N Y Supp 921; Ash- worth v Wrigley, i Paige ( N Y) 301; Eichenberg v Marcy (RI, 1893), 26 At L Rep 46; Greenville Nat Bank v Jennings, 38 S Car 372; Sawyer v Nelson, 44 111 App 184; Mangaletti RMcMillan, 10 Pa Co Ct Rep 239 In Libel and SlandeRSpecial bail can b~ r equired only where special damage is shown or the defendant is about to Malicious Prosecutio N Aarons v Dunseith, n Pa Co Ct Rep 208; Nash v Bloom, 10 Pa Co Ct Rep 358; Dempsey v Lepp, 52 How Pr ( N Y Supreme Ct) HI; Orton v Noonan, 32 Wi S 220 In 7'rover and Conversio N Arnold v Thomas, i How Pr ( N Y Supreme Ct) 246; Lopeman v Henderson, 4 Pa St 232; Emerson v Dow, n W N C (Pa) 270 In Actions for Trespas S Davis v Scott, 15 Abb Pr ( N Y C PL) 127; Mall v Witmer, II W N C (Pa) 498; Patten v Halsted, i N J L 277; Roberts v Slingsley, Si d 307 In trespass special bail can be re- quired only where plaintiff states in his affidavit fully the details of the in- juries and the amount of damage sus- taine d Gall v Molesa, 3 Pa DiSt Rep 537 Louisiana In Louisiana a debtor can be arrested and held to bail only where he has absconded from his last place of residenc e Hand v Talia- ferro, i La An N 26 Massachusett S In Massachusetts a defendant can be held to bail for torts, contrary to the general rul e Jones v Keil Y 17 Mas S 116 In Michigan a woman could not be held to bail upon a capias issued un- der the penal section of the prohibi- tory liquor law ( C L 1871, 2138).

Autor of the post: Undefined

Where a defendant has been Post Date: Fri, 1 Aug 2008 9:11:52 +0000
People v Bartow, 27 Mich 68 same cause of actio N 1 The rule that a defendant cannot be held to bail twice for the same cause of action applies only where both holdings are in the same jurisdiction ; it is not a good objection that defendant has been held to bail in another jurisdictio N 2 Defendant Exempt. Where a defendant is exempt from execution against his body he cannot be held to bai L 3 But by giving bail without objection defendant waives his exemption from arreSt 4 Discretionar Y Holding to bail, where an order therefor is neces- 1 Clark v Weldon, 4 Yeates (Pa) 206; Green v Foskett, n Rich ( S Car) 336 A defendant will not be held to bail in two places at the same time on the same cause of actio N Bingham z/Wil- kins, Crabbe (U S) 50; Post v Sarmi- ento, 2 Wash (U S) 198; Lambert v Moore, 6 N J L 131; Clark e Weldon, 4 Yeates (Pa) 206 But see Parasset v Gautier, 2 Dal L (U S) 330 In Action on the Judgment. Where a defendant has been held to bail, and judgment recovered against him, he cannot be again held to bail in an ac- tion on the judgment, although the bail bond given in the original action was voi d President, etc, v Green, 2 Rich ( S Car) 336 Insolvent Discharge d A debtor who has been discharged under the insol- vent law of a state where he resided and the debt was contracted will not lie required to put in special bai L Fisher v Hyde, 3 Yeates (Pa) 256; Smith v Brown, 3 Bin N (Pa) 201; Walsh v Nourse, 5 Bin N (Pa) 381; Hare v Moultrie, 2 Yeates (Pa) 435; Pippet v Greenleaf, 2 Yeates (Pa) 533; Millar v Hall, i Dal L (U S) 229; Donaldson S Chambers, 2 Dal L ( U S) TO O Contra, Woodbridge v Wright, 3 Con N 523; Sicard v Whale, II John S ( N Y) 164; Gorgerat v M'Car- ty, I Dal L (U S)366 2 Peck v Hozier, 14 John S ( N Y) 346; Whittemore v Adams, 2 Co W ( N Y) 626; Man v Lowden, 4 Mc- Cord ( S Car) 485; Hubbard v Went- worth, 3 N H 43; Parasset v Gautier, 2 Dal L (U S) 330; Gordon v Lindo, i Cranch ( C C) 588 Foreign Exemptio N Although a de- fendant has been arrested and dis- charged from imprisonment in one state, by the laws of which he is ex- empted from further imprisonment, he may still be held to bail for the same cause of action in another stat e James v Allen, i Dal L (U S) 188; Webster v Massey, 2 Wash (U S) 157; Peck v Hozier, 14 John S ( N Y) 346; Whitte- more v Adams, 2 Co W ( N Y) 626; Hubbard v Wentworth, 3 N H 43 Discharge in Insolvenc Y The dis- charge of a defendant under the bank- rupt or insolvent laws of another state does not prevent his being ar- rested and held to bai L James v Allen, i Dal L ( U S) 188; Woodbridge v Wright, 3 Con N 523 Lex Fori Govern S The right to hold to bail is governed by the lex fort, and though a contract on which a suit is brought was made in the jurisdiction where the defendant could not be held to bail, he may nevertheless be held thereto according to the law of the place where suit is brought.

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M ( S Post Date: Fri, 1 Aug 2008 8:55:17 +0000
Smith v Spinolla, 2 John S ( N Y) 198; Milne v Moreton, 6 Bin N (Pa) 353 Suit Suspended by Foreign La W In an action on contract between foreigners, where an action thereon is suspended by the law of the country where the contract was made, to a time beyond that at which the action here was brought held, that special bail could not be require d Conframp v Bunel, 4 Dal L (U S) 419 3 Green v Morse, 5 Me 291; Will- ington v Stearns, i Pic K (Mas S) 497- 4 Stewart v Hill, i Mich 265; Stewart v Howard, 15 Barb ( N Y) 26 Waives Want of Jurisdictio N Where defendant, on being arrested for debt, gave bail held, that this operated as a waiver of objection to the jurisdiction of the court over his person; and that the giving bail was equivalent to ap- pearance, notwithstanding the arrest was held to be illega L Jacobs v Ste- vens, 57 N H 610 See Wright v Jeffrey, 5 Co W ( N Y) 15; Stewart v Howard, 15 Barb ( N Y) 26; Dale v Radcliffe, 25 Barb ( N Y) 333; Stew- art v Hill, i Mich 265; Brow I v Kelley, 20 Mich 32 sary, is discretionary, and the action of the judge will not be reversed if there is any evidence to sustain it. 1 b COMMON AND SPECIAL BAI L The distinction between common and special bail exists in this country, and has been recognized in some jurisdictions; 2 while in others bail given to the sheriff answers the purpose of both bail below and bail abov e 3 Common bail is required in all actions in some jurisdictions ; 4 such bail is merely formal, and, if defendant fails to give it, the plaintiff may file such bail and take judgment by default on defendant's failure to put in special bail within a specified ti Me 5 Special bail is required as of course in some actions, and may be demanded in other S In general, special bail is required only where special cause therefor is show N 7 1 Van Waggenen v Coe, 22 N J L 2 Blanding v Rogers, 2 Brev ( S Car) 394; Morrison S Silverburgh, 13 111 551; Games v Hunt, 8 John S ( N Y)358 The filing of common bail is neces- sary to perfect appearance; but this may be done at any time, being mat- ter of for M Anonymous, 20 N J L 494; Corse v Colfax, 5 N J L 684; Golden v Knickerbacker, 2 Co W ( N Y)3i; Pardee v Reid, 4 Co W ( N Y) 51; Phelps v Bronson, 4 Co W ( N Y) 61; Lane v Cook, 8 John S ( N Y) United States Court S The taking of bail for appearance is a part of the procedure, in an action in the United States courts, which is governed by the practice in such courts, and not by that of the state court S Lane v Townsend, Ware (U S) 286 3 Hamilton z Dunklee, i N H 172; Pierce v Read, 2 N H 359; Hale v Russ, I Me 336; Filler v Bryson, 6 W S (Pa) 568; Freeman v Hays, 2 Pa L J 253; Champion v Noyes, 2 Mas S 481 When a defendant is arrested he is required to give bond conditioned to appear and answer, and also to abide the order or judgment in the actio N Bail so given answers the purpose both of bail below and bail abov e Champion v Noyes, 2 Mas S 484; Har- rington v Dennie, 13 Mas S 94; Fletcher v Weatherby, 3 Strob H ( S Car) 56; Broaders v Welsh, 2 Nott. M ( S Car) 569; Hale v Russ, i Me 334; Hamilton v Dunklee, I N H 172 4 Edson v Cheshire, 2 McCord ( S Car} 185; Bernbridge v Turner, 2 Yeates (Pa) 429; Morrison v Silver- burgh, 13 111 551 Where no ArreSt Bail below may be required in some cases where defend- ant has not been arreste d Coward S Bohun, iHar J (Md) 538; Will- iamson v Cummings, 2 McCord ( S Car) 250 5 Lane v Cook, 8 John S ( N Y) 359; Phelps v Bronson, 4 Co W ( N Y) 61; Byrne v Morris, 2 Co W ( N Y) 472; Corse v Colfax, 5 N J L 684; Smith v Bohn, 4 Wash (U S) 127 6 Peareson v Pickett, i McCord ( S Car) 472; Bunting v Brown, 13 John S ( N Y) 425; Hartness v Pur- cell, i Wen d ( N Y)3O3; Anonymous, 4Har M (Md) 159; Douglass v Wight, 2 Brev ( S Car) 218 Must be Demande d If a plaintiff de- sires special bail to be put in, he must demand it, otherwise such bail will not be require d Douglass v Wight, 2 Brev ( S Car) 218 7 Patten v Halsted, i N J L 277; Brookfield v Jones, 8 N J L 311; Clason v Gould, 2 Ca I ( N Y) 47; Charles v Holmes, i Browne (Pa) 297; Jack v Shoemaker, 3 Bin N (Pa) 283 The defendant will not be dis- charged on common bail where doubt- ful questions of law or fact are raised by the motion paper S Laverty v Snelling, 3 Cranch ( C C) 290; Craig v Brown, Pet ( C C) 352; Knox v, Greenleaf, Wal L ( C C) 108 But see Goldsmith v Lang, 25 Ala 486 Where no ArreSt Where the capias has been returned non est inventus and there has been no arrest of de- fendant, he cannot be discharged on common bai L Robbins v Redheffer, 33 W N C (Pa) 220 C WAIVER OF RIGHT TO HOLD TO BAI L The right of plaintiff to require bail in any case maybe waived by him, and he may proceed without it.

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5 Money Cannot be Given Post Date: Fri, 1 Aug 2008 8:37:06 +0000
1 A plaintiff who accepts a plea, or pro- ceeds in the cause before special bail is put in, waives his right to such bail and to imprison Defendant 5 * d BAIL ON APPEAL (See also article APPEAL BONDS, Vo L i, P 963) Discretionar Y Bail in error or on appeal rests in the dis- cretion of the court, where not regulated by statute, 3 and is usu- ally not required unless a stay of execution is desire d 4 Amount. When required it should be in twice the amount of the judgment. 5 Money Cannot be Given in lieu of bail, on appeal, except by CONSENT 6 Justificatio N Bail on appeal may be excepted to and must justif Y 7 Liability of Bai L Bail in error are liable if the judgment be affirmed, the writ of error discontinued, or the plaintiff non- prosse d 8 Indemnificatio N A bail in error who, by reason of his liability, pays the costs in an action, may take an assignment of the judg- ment therefor and recover the same by execution against the original defendant S 9 4 Proceedings to Obtain Bail Affidavit.

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(Pa) 499; Walker z/ Post Date: Fri, 1 Aug 2008 8:23:43 +0000
In order to hold defend- ant to bail, plaintiff is usually required to present an affidavit stating facts entitling him to such relief according to the statutes or practic e 10 The ground on which the right to hold to bail is 2 Halsey v Fanning, 2 Root It was held in Smith v Steel, I (Con N), 101; Hubbard v Shaler, 2 Ash M (Pa) 80, that where bail for an Day (Con N) 199; Gallup v Dennison, appeal is entered within twenty days Kirby (Con N) 434; Culpepper Agricul- the justice should allow time for ex- tural, etc, So C v Digges, 6 Rand, ception and justification, and, if nec- ( Va) 165; Flack v Eager, 4 John S ( N essary, for entering other bai L 3 Bevan v Whitmore, 15 CB, N v Holmes, i Browne (Pa) 297; Aarons S 442, 109 E C L 442; Turquand v v Dunseith, n Pa Co Ct Rep Moss, 17 CB, N 824, 112 E C L 208; Mangaletti v McMillan, 10 Pa 24 Co Ct Rep 239; Hawthorn v Hun- claimed should be stated therei N 1 Sucli affidavits are usually re- quired to state the existence of a debt and the amount due the plaintiff, 2 and also some special circumstances to prevent defend- ant's discharge on common bai L 3 Insufficiency of the affidavit on ter, 8 Leigh ( Va) 411; In re Smith, 16 111 347; Fergus v Hoard, 15 111 357; Parker v Fallensbee, 45 111 473; Matoon v Eder, 6Cal57; Cummer v Moyer, 57 Mich 375; Sheridan v Briggs, 53 Mich 569; Wilcox v Ismon, 34 Mich 268; Pease v Pendell, 57 Mich 315; Wert v Strouse, 38 N J L 184 1 Alabama Wykoff v Taylor, 2 Stew p (Ala ) 105 ; Magee v Erwin, 5 Stew p (Ala) 54; Wade v Judge, 5 Ala 130; E X p Harlan, 39 Ala 563 New Jerse Y Kinney v Muloch, 17 North Carolina Farmers' Bank v Freeland, 5 Jones (N Car) 326; Wood v Harrell, 74 N Car 338 Pennsylvania Holland v Dealy, 36 Le g Int (Pa) 479; Philadelphia Coal Co r Huntzinger, 6 W N C (Pa) 300; Vanderslice v Spear, 2 Miles (Pa) 392; Carvill v Cochran, i Phi La (Pa) 399; Philadelphia Loan Co v Isaac, 2 Miles (Pa) 145; Bene- dict v Whartenby, 2 Miles (Pa) 131; Cammann v Hind, i Whart (Pa) 320; Delaware Mut In S Co v Walker, i Phi La (Pa) 104; Donahue v Keller, 1 Phi La (Pa) 106; Chase F Ricketts, 3 Luz. L Ob S (Pa) No See alto Fotterall v Miller, I De L Co Rep (Pa) 286; Eldridge v Robinson, 4 S 6 R(Pa) 548; Marquis v Goldstein, 2 W N C (Pa) 112 Ver Mont Converse v Washburn, 43 Vt 129; Davis v, Dorr, 30 Vt 97 United State S Travers v Hight, 2 Cranch (U S) 41; Young v Moriarty, 2 Cranch ( C C) 42; Clarke v Druet, 4 Cranch ( C C) 142; Mecklin v Cald- well, i Cranch ( C C)4oo; Young v Palmer, 2 Cranch ( C C) 625; Bar- tleman v Smarr, 2 Cranch ( C C) 16; Laverty v Shellin g 3 Cranch ( C C) 290; Mayo v Smith, 5 Cranch ( C C) 569; Greenleaf v Cross, i Cranch ( C C) 400; Doyne v Bar- ker, 4 Cranch ( C C) 475; Stetinius v Orme, 4 Cranch ( C C) 342; Lan- straaz v Powers, i Cranch ( C C) 42; Doyne v Barker, 4 Cranch ( C C) 475; Stettinius v Orme, 4 Cranch ( C C) 342 In Pennsylvania it has been held that if the affidavit contains material inter- lineations the defendant will be dis- charged on common bail, Agnew v Dubois, 8 W N C (Pa) 406; that the defendant's name must be inserted; it is not sufficient to name him in the caption and refer to him in the affidavit as the "defendant," Flaherty v Lindsay, 7 W N C (Pa) 79; Trewitz v Young, 13 L BaR(Pa) 202; and that the defendant must be named in the body of the affidavit; it is not sufficient to refer to him as the " said Defendant" Smith v Bible, i Phi La (Pa) 91 2 Campbell v Grove, 2 John S Ca S ( N Y) 105; Hughes v Martin, i Ark 455; Nevins v Merrie, 2 Whart. (Pa) 499; Walker z/ Bamber, 8 S R(Pa) 61; Jennings v Sledge, 3 Ga 128; Lewis v Brackenridge, i Blackf (Ind) 112; Hawkins v Gibson, I Leigh ( Va) 476; Parker v Ogden, 2 N J L 136 3 Mott -v Jerome, 7 Co W ( N Y) 518; Brooks v McLellan, i Barb ( N Y) 247; Mustin v Mustin, 13 Ga 357; Lewis v Brackenridge, I Blackf (Ind) 112; Hockspringer v Ballen- bury, 16 Ohio 304 Information and Belief An affidavit to hold to bail the allegations in which are made upon information and belief, is not sufficient.

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