« PreviousContinue »
him in our Court of to the said action and that in default of so doing such proceedings may be had and taken as are mentioned in the warning written or indorsed hereon. And we do further command you that immediately after the execution hereof you do return this writ to our said Court of together with the manner in which you shall have executed the same and the day of the execution thereof; or if the same shall remain unexecuted then that you do so return the same at the expiration of one calendar month from the date hereof or sooner if you shall be thereto required by order of the said Court or by any judge thereof. Witness at Westminster [or as the case may be] the
This writ is to be executed within one calendar month from the date thereof including the day of such date and not afterwards.
If a defendant having given bail on the arrest shall omit to put in special bail as required, the plaintiff may proceed against the Sheriff or on the bail bond.
Bail for this
pounds by order of
day of This writ was issued by E. F. of within-named.
[naming the judge making the order] dated
attorney for the plaintiff [or "plaintiffs"]
This writ was issued in person by the plaintiff within-named who resides at [mention the city, town or parish, and also the name of the hamlet, street and number of the house of the plaintiff's residence, if any such there be.]
W. to wit. Esq. Sheriff of the county aforesaid: To and my bailiffs greeting. By virtue of the Queen's writ of capias to me directed I command each and every of you jointly and severally that you omit not by reason of any liberty in my bailiwick but that you enter the same and take if he shall be found in my bailiwick and him safely keep until he shall have given me bail or made deposit with me according to law in an action on contract at the suit of or until the said shall by other lawful means be discharged from my custody; and I do further command each and every of you jointly and severally that on execution hereof you do deliver to him a copy of the said writ here with delivered to you; and I do further command you that immediately after the execution hereof you do certify to me the manner in which you shall have executed the same and the day of the execution hereof so that I may return the same to her Majesty's said Court or that if the same shall remain unexecuted then that you do so return this my warrant at the expiration of one calendar month from the date of the said writ or sooner if thereto required. Dated the day of - 18-.
[Seal of office.]
a Dalt. 103.
The Sheriff himself may personally execute the writ, and so By whom to may his Under-sheriff, without warrant.a It is usually executed be executed. by a bound-bailiff, under and by virtue of a warrant, stating the cause of action, the sum for which the defendant is to be held to bail, and at whose suit. If directed to two or more jointly and severally, any one may execute the writ; but, if directed to them jointly, all must be acting in the arrest, otherwise it will be
illegal. If it be directed to A. B., and, after it is issued, A. B. insert the name of C. D.; or, if any part of it be left blank, and, after it is issued, filled up, the warrant is void. The person making out the warrant must, at the time he does it, actually have the writ in his custody. The day and year, set down on the writ, must also be set down on the warrant, under the penalty of 10l.e When to be It is to be executed within one calendar month after the date thereof, including the day of such date, but not afterwards. Under the 14 & 15 Vict. c. 52, the capias must be issued and served within seven days after the warrant is obtained. The defendant, when arrested, must remain in custody until he shall have given a bail bond to the Sheriff, or shall have made deposit of the sum indorsed on the writ, together with 10l. for costs. Although valid for one calendar month, he must set about executing the writ in a reasonable time after it is delivered to him: and he must arrest on the first opportunity. It cannot be executed on a Sunday. After a negligent escape, however, the defendant may be retaken on a Sunday.i Bail also may take the principal on a Sunday. It may be executed at any hour, by day Where to be or by night. If the writ is to be executed within a liberty (as the writ contains a non omittas clause) no warrant to the bailiff of the liberty is required ;m for the Sheriff, and not the bailiff, must execute a writ containing such a clause. There used to be, especially in London and Southwark, many supposed sanctuaries from justice, under the pretext of their being ancient Royal Palaces, and the like; but they were for the most part abolished by the 8 & 9 W. 3, c. 27, s. 15; see also 9 Geo. 1, c. 28, s. 1; 11 Geo. 1, c. 22, s. 1. The Sheriff, however, should not arrest in a Court of Justice, nor in the Royal Residence; for although the arrest might be good, yet he would be guilty of a contempt, and might be punished accordingly.°
The arrest is usually made by corporal seizure or by touch, but this is not absolutely necessary;P where the officer went into the room and fastened the door, telling the debtor at the same time that he arrested him, it was held a good arrest.9 A correct copy of the writ must be upon or forthwith after the arrest delivered to the defendant. The officer to whom the warrant is directed need not be the person actually making the arrest, nor need he be
Arrest how made.
within sight when the arrest is made, but he must be acting in the arrest, he cannot stay at home and send another to make it. gaoler cannot be compelled to accept a capias under 1 & 2 Vict. c. 110, in order that it may operate as a detainer: in such cases it should be delivered to the Sheriff, and the gaoler should be prevailed upon to act as a friend, and communicate to the parties concerned the time when the defendant is likely to be discharged out of custody.b
The following form a part of the general rules of Hilary Term, Reg. Gen. of
81. The Sheriff, or other officer or person to whom any writ of Indorsecapias shall be directed, or who shall have the execution and ment of return thereof, shall, within six days at least after the execution thereof, indorse on such writ the true day of the execution thereof.
82. Where the defendant is described, in the writ of capias or Defendant affidavit to hold to bail, by initials, or by a wrong name, or without described by a Christian name, the defendant shall not be discharged out of wrong custody, or the bail-bond delivered up to be cancelled, on motion for that purpose, if it shall appear to the Court that due diligence has been used to obtain knowledge of the proper name.
83. An action may be brought upon a bail-bond by the Sheriff Proceedings himself in any Court.
84. In all cases where the bail-bond shall be directed to stand as a security, the plaintiff shall be at liberty to sign judgment upon it.
85. Proceedings on the bail-bond may be stayed on payment of costs in one action, unless sufficient reason be shown for proceeding in more.
86. When bail to the Sheriff become bail to the action, the plaintiff may except to them, though he has taken an assignment of the bail-bond.
87. A plaintiff shall not be at liberty to proceed on the bailbond pending a rule to bring in the body of the defendant.
88. No rule shall be drawn up for setting aside an attachment, regularly obtained against a Sheriff, for not bringing in the body, or for staying proceedings regularly commenced on the assignment of any bail-bond, unless the application for such rule shall, if made on the part of the original defendant, be grounded on an affidavit of merits, or if made on the part of the Sheriff, or bail, or any officer of the Sheriff, be grounded on an affidavit, showing that such application is really and truly made on the part of the Sheriff, or bail, or officer of the Sheriff, as the case may be, at his or their own expense, and for his or their indemnity only, and without collusion with the original defendant.
89. Whenever a plaintiff shall rule the Sheriff on a return of cepi corpus to bring in the body, the defendant shall be at liberty to put in and perfect bail, at any time before the expiration of such rule; and, a plaintiff having so ruled the Sheriff, shall not proceed
a Blatch v. Archer, Cowp. 65.
b Edwards v. Robertson, 7 Dowl. 858.
on any assignment of the bail-bond, until the time has expired to bring in the body as aforesaid.
90. In case a rule for returning a writ of capias shall expire in vacation, and the Sheriff or other officer having the return of such writ shall return cepi corpus thereon, a rule may thereupon issue, requiring the Sheriff or other officer, within the like number of days after the service of such rule as by the practice of the Court is prescribed with respect to rules to bring in the body issued in term, to bring the defendant into Court, by forthwith putting in and perfecting bail above to the action; and if the Sheriff or other officer shall not duly obey such rule, an attachment shall issue in the following term for disobedience of such rule, whether the bail shall or shall not have been put in and perfected in the meantime.
91. Notice of more bail than two shall be deemed irregular, unless by order of the Court or a Judge.
92. The bail of whom notice shall be given, shall not be changed without leave of the Court or a Judge.
93. No person or person shall be permitted to justify himself or themselves as good and sufficient bail for any defendant or defendants if such person or persons shall have been indemnified for so doing by the attorney or attorneys concerned for any such defendant or defendants.
94. If any person put in as bail to the action, except for the purpose of rendering only, be a practising attorney, or clerk to a practising attorney, or a sheriff's officer, bailiff, or person concerned in the execution of process, the plaintiff may treat the bail as a nullity, and sue upon the bail-bond as soon as the time for putting in bail has expired, unless good bail be duly put in in the
95. In the case of country bail, the bail-piece shall be transmitted and filed within eight days.
96. A defendant may justify bail at the same time at which they are put in, upon giving four days' notice for that purpose, before eleven o'clock in the morning, and exclusive of Sunday. If the plaintiff is desirous of time to inquire after the bail, and shall give one day's notice thereof as aforesaid to the defendant, his attorney or agent, as the case may be, before the time appointed for justification, stating therein what further time is required, such time not to exceed three days, then (unless the Court or a Judge shall otherwise order) the time for putting in and justifying bail shall be postponed accordingly, and all proceedings shall be stayed in
97. Every notice of bail shall, in addition to the descriptions of the bail, mention the street or place, and number (if any), where each of the bail resides, and all the streets or places, and numbers (if any), in which each of them has been resident at any time within the last six months, and whether he is a housekeeper or freeholder.
98. If the notice of bail shall be accompanied by an affidavit of each of the bail, according to the following form, and if the plaintiff afterwards except to such bail, he shall, if such bail are
allowed, pay the costs of justification; and, if such bail are rejected, the defendant shall pay the costs of opposition, unless the Court or a Judge thereof shall otherwise order.
99. If the plaintiff shall not give one day's notice of exception to the bail by whom such affidavit shall have been made, the recognizance of such bail may be taken out of Court without other justification than such affidavit.
100. Where notice of bail shall not be accompanied by such affidavit, and in bail in error, the plaintiff may except thereto within twenty days next after the putting in of such bail and notice thereof given in writing to the plaintiff or his attorney, or where special bail is put in before any Commissioner the plaintiff may except thereto within twenty days next after the bail-piece is transmitted and notice thereof given as aforesaid; and no exception to bail shall be admitted after the time hereinbefore limited.
101. Affidavits of justification shall be deemed insufficient unless they state that each person justifying is worth double the amount sworn to over and above what will pay his just debts, and over and above every other sum for which he is then bail, except when the sum sworn to exceeds 1000l., when it shall be sufficient for the bail to justify in 1000l. beyond the sum sworn to.
102. It shall be sufficient, in all cases, if notice of justification of bail be given two days before the time of justification.
103. In all cases bail either to the action or in error shall be justified, when required, within four days after exception, before a Judge at chambers, both in term and vacation.
104. Bail, though rejected, shall be allowed to render the prin- Render in cipal without entering into a fresh recognizance. discharge of
105. Bail shall be at liberty to render the principal at any time bail. during the last day for rendering, so as they make such render before the prison doors are closed for the night.
106. On application by a defendant or his bail, or either of them, for an order to render a defendant to a county gaol, it shall be specified on whose behalf such application shall be made, the state of the proceedings in the cause, for what amount the defendant was held to bail, and by the Sheriff of what county he was arrested, which facts shall be stated in the order; and that on such order being lodged with the gaoler of the county gaol in which such defendant was so arrested, the defendant may be rendered to his custody in discharge of the bail; and that on such lodgment and render a notice thereof, and of the defendant's being actually in custody thereon, in writing, signed by the defendant or his bail, or either of them, or the attorney or agent of any or either of them, shall be delivered to the plaintiff's attorney or agent, and thereupon the bail for the said defendant shall be wholly exonerated, without entering any exoneretur.
107. If a defendant shall be in custody of the gaoler of any county gaol by virtue of any process issued out of any of the said Courts, he may be rendered in discharge of his bail in any action depending in the said Court in like manner as is last hereinbefore