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Liability of bail.
provided, and thereupon the bail shall be wholly exonerated without entering any exoneretur.
108. Where the plaintiff proceeds by action on the recognizance of bail, the bail shall be at liberty to render their principal at any time within the space of eight days next after the service of the process upon them, but not at any later period; and notice thereof given, the proceedings shall be stayed upon payment of the costs of the writ and service thereof only.
109. Bail shall only be liable to the sum sworn to by the affi davit of debt and the costs of suit, not exceeding in the whole the amount of their recognizance.
110. To entitle bail to a stay of proceedings pending a writ of error, the application must be made before the time to surrender is
111. When two or more notices of justification of bail shall have been given before the notice on which bail shall appear to justify, no bail shall be permitted to justify without first paying (or securing to the satisfaction of the plaintiff, his attorney or agent,) the reasonable costs incurred by such prior notices, although the names of the persons intended to justify, or any of them, may not have been changed, and whether the bail mentioned in any such prior notice shall not have appeared, or shall have been rejected.
Know all men by these presents that we are held and firmly bound to Sheriff of the county of in the penal sum of of good and lawful money of Great Britain to be paid to the said Sheriff or his certain attorney executors administrators or assigns for which payment to be well and faithfully made we bind ourselves and every one of us by himself for the whole and every part thereof and the heirs executors and administrators of us and every of us firmly by these presents sealed with our seals. Dated this &c. WHEREAS the above bounden
was on the day of
a He may deposit the sum indorsed, together with 107. for costs, or he may give a bail bond, 1 & 2 Vict. c. 110, s. 4. The Sheriff is to prepare the bond; and, it seems, at the expense of the party arrested, Milne v. Wood, 5 Car. & P. 587. It does not require a stamp, 5 Geo. 4, c. 41. It is not indispensably necessary to the validity of the bond that there be an actual arrest, Taylor v. Clow, 1 B. & Ad. 223. The bail bond must be executed on or before the eighth day, or it will be void, Pullein v. Benson, 1 Ld. Raym. 352; Taylor v. Clow, 1 B. & Ad. 223. Upon sureties having sufficient within the county, &c., where the
arrest was made being tendered, Lovell v. Sheriffs of London, 15 East, 320 (but for whose sufficiency the Sheriff is not answerable, 2 Saund. 61 b), the Sheriff is bound to discharge him; Ibid. The security to the Sheriff must be by bond(therefore an attorney's undertaking to the Sheriff is void, 1 Dowl. P. C. 261; as to an undertaking to the plaintiff, see Evans v. Moseley, 2 Dowl. 364); the bond must be to the Sheriff himself by the name of his office; Rogers v. Reeves, 1 Term Rep. 422; 7 Ib. 109; Lewis v. Knight, 8 Bing. 271. It is not now conditioned for appearance, 2 Q. B. 116.
said Court within eight days after such execution. NOW THE CONDIdo cause special bail to be put
special bail to be put in to the said action in the execution thereof on him inclusive of the day of TION of this obligation is such that if the said in for him to the said action in her Majesty's said Court as required by the said writ then this present obligation to be void and of no force otherwise to stand and remain in full force vigour and effect.
Sealed and delivered in the presence of
Assignment of Bail Bond.a
I the within-named Sheriff at the request of the within-named plaintiff assign this bail-bond pursuant to the statute in such case made and provided. In witness whereof I have hereto set my hand and seal this
G. A. Esq. High Sheriff.
Sealed and delivered in the presence of
Return of Non est inventus.
The within-named C. D. is not found in my bailiwick.
Returns of Cepi Corpus et Paratum habeo. On the day of A.D. 18- I took the within-named C. D. in my bailiwick and forth with delivered to him a copy of this writ and him safely kept until he gave me bail [or "made deposit with me"] according to law.
The answer of
a The assignment may be made by the Sheriff, or Under-sheriff in the name of his principal, White v. Barrack, 1 M. & W. 425; or it seems by a person acting in the Under-sheriff's office, Harris v. Ashley, Tidd's New Pr. 164; Middleton v. Sandford, 4 Camp. Rep. 36; sed qu. Kitton v. Fag, 10 Mod. 288. It must be made by indorsement on the bond under the hand and seal of the Sheriff, and made in the presence of two credible, that is, disinterested persons, White v. Barrack, 1 M. & W. 424. It is not necessary that the witnesses should both subscribe their names at the time of the execution of the assignment, Phillips v. Barlow, 1 Scott's Rep. 322; 1 Bing. N. C. 433, S. C.; Dawes v. Papworth, Willes, 408; 2 Saund. 61 n.: see post, "Action for not assigning Bail Bond."
With regard to money deposited with the Sheriff in lieu of giving bail, the practice remains as before the 1 & 2 Vict. c. 110, s. 4, vide 43 Geo. 3. 46; 8 Dowl. P. C. 914, and Ib. 11; 6 M. & W. 90. An execution creditor in another
action cannot have this money, France v. Campbell, 9 Dowl. 914. The Sheriff must, it seems, within the eight days after the arrest, pay the sum deposited into court; which, if defendant duly puts in and perfects special bail or render himself, may be recovered without waiting for the final determination of the suit, Tuton v. Gale, 1 Dowl. N. S. 383. If defendant neglects to take any further steps the plaintiff is entitled to take the amount (subject to taxation) out of Court without waiting for the final determination of the suit, Nyssen v. Ruysenaers, 5 Exch. 857. If he leaves the country the court will allow a rule nisi to be served by sticking it up in the office, Know v. Duncan, 9 Dowl. 179. No poundage or other fees can be deducted therefrom, Haines v. Nairn, 2 Dowl. P. C. 43. Upon receiving a written discharge from the plaintiff or his attorney, the Sheriff is bound to discharge the person arrested without a bail bond, &c., Martin v. Francis, B. & Ald. 402.
day of -A.D. 18- I took the within-named C. D. and forth with delivered to him a copy of this writ and whose body I have ready as within I am commanded. The answer of High Sheriff. day of ——— A.D. 18- I took the within-named C. D. and forth with delivered to him a copy of this writ and whose body is now under my custody in the county gaol at A. The answer of High Sheriff.
Return of prior removal by Habeas Corpus.
By virtue of this writ to me directed I did on the day of take the within-named C. D. and did safely keep him in her Majesty's prison in and for the county of W. until afterwards to wit on &c. I received her said Majesty's writ of habeas corpus cum causâ commanding me to have the body of the said C. D. before the Right Hon. —————— at his chambers in Rolls Yard Chancery Lane London immediately after the receipt of that writ: By virtue of which said writ on the day and at the place therein mentioned I had the body of the said C. D. before &c. who then received of me the body of the said C. D. and then committed him to the Queen's prison [or as the case may be] and then wholly discharged me from further keeping him under my custody: Wherefore I cannot have the body of the said C. D. before our said lady the Queen at the day and place within contained as within I am commanded.
The answer of
THIS is a process from a Court of Record, awarded by the Justices at their discretion, on a bare suggestion or on their own knowledge; and is properly grantable in cases of contempts, against which all Courts of record may proceed in a summary way. When it lies" It seems clear (says Hawkins) from the general reason of the against law, (which gives all Courts of record a kind of discretionary Sheriffs or power over all abuses by their own officers, in the administration their offior execution of justice, which bring a disgrace on the Courts themselves, as not taking sufficient care to prevent them,) that wherever it shall appear, that any such officers have been guilty of any corrupt practice in not serving any writ-as where they refuse to do it, unless paid an unreasonable gratuity from the plaintiff or receive a bribe from the defendant-or give him notice to remove his person or effects, in order to prevent the service of any writ, the Court, which awarded it, may punish such offences in such manner as shall seem proper by attachment, &c., as well as the Court of K. B., which has a general superintendency over all crimes whatsoever (as the Star-chamber had also formerly), but commonly leaves offences of this kind, in relation to causes in other Courts, to be punished by such Courts to which they more immediately belong. But if there neither appear to have been any palpable corruption in the case, nor particular obstinacy, as by disobeying a special rule of the Court, in relation to the service of such writ, nor other extraordinary circumstances of wilful negligence, the judgment whereof is to be left to the discretion of the Court, it seems not to be usual to
a Hawk. P. C. b. ii. ch. 22; Bl. Comm. b. iv. c. 20.
grant an attachment in such cases, but to leave the party to his ordinary remedy against the officer; which he may have either by serving him with rules to return the writ &c., or by suing him for the damage sustained by his negligence, . .... or by taking out an alias and pluries, which if the Sheriff do not execute, an attachment, directed to the coroners, goes against him of course, unless he give a good excuse for his not having done it. And if the coroners do not execute the writ, the Court will, in the first instance, grant an attachment against them directed to elizors." So also it is every day's practice to grant attachments for escapes, extortion, " using needless force, violence and terror, in making an arrest; or by breaking open doors where by law it is not justifiable, and there is no plausible excuse for doing it; or treating the persons arrested basely and inhumanly; or keeping them in custody till they consent to pay money for their deliverance; or making an arrest without due authority, as by force of a blank warrant, filled up with the name of a special bailiff by the party himself, or bailiff, without the privity or subsequent agreement of the Sheriff. Yet I have sometimes known attachments of this kind denied, in respect of the common use of the practice, which by experience hath been found to be almost necessary in some cases to prevent the defendant's having notice of the intended arrest; and therefore, if it shall appear to the Court, that there was any such reasonable cause for such a proceeding, it will be a great inducement to excuse, if not wholly to dispense with it. ... It seems also clear, that where any such officer is guilty of any corrupt practice in depriving the party who sues out a writ of that benefit and advantage which he ought to have from the execution of it, he is liable to be punished in the manner above-mentioned; as if he levy the debt by virtue of an execution, and keep the money in his own hands, and embezzle it: but unless there appear some gross and palpable corruption in a Sheriff neglecting to return a writ, which hath been executed by him, or to bring in the body, or the money &c. according to his return, the Court will hardly grant an attachment against him immediately, but will rather proceed against him by rules to return the writ &c. and if he do not obey them, will increase the amercements upon him till he do, or perhaps grant an attachment for the contempt: and if the Sheriff return, that he sent the process to the bailiff of a liberty, who hath given him no answer, a non omittas shall be awarded to the Sheriff: and if he return, that he sent the process to such bailiff, who hath returned a cepi corpus, or such like matter, and the bailiff bring not in the body or money &c. at the day, by the better opinion the bailiff shall be amerced, and a writ shall issue to the Sheriff, to distrain the bailiff to bring in the body &c. ... So if the Sheriff allow the debtor to go at large on bail and return cepi and have not the body at the day of attachment and amercement as formerly is the process. And there seems to be no doubt
a Arden v. Goodacre, 11 C. B. 367, 371.
but that wherever any such officer endeavours to impose upon a Court, by making a return to a writ of a matter known by him to be false, he is, in strictness, liable to be punished in this manner, for his contempt. Yet it seems, that the Court will not easily be prevailed on to proceed in this manner for a bare false return, but will rather leave the party injured by it to his remedy by an action, unless there be some extraordinary circumstances of hardship or oppression; as where an officer who had arrested one on a capias, returned, and that he had taken him, but that the party was so sick, that he could not bring in his body at the day for the fear of endangering his life, where in truth the party had been all the while in good health, and was only detained under such pretence, in order to extort money from him &c. And where a Sheriff has been guilty of a contempt in the course of a civil suit, and the defendant afterwards dies, an attachment may still issue against the Sheriff for the prior contempt." It is also granted against persons guilty of intentional contempt by word or deed or the process of a Court of Justice.a
Attachments are usually granted on a rule to show cause, unless the offence complained of be of a flagrant nature and positively sworn to, when the attachment will be granted on the first complaint, without any such rule to show cause.b The party who is ordered to attend the Court in pursuance of such rule, ought regularly to appear in proper person, and not by attorney. So also must every one against whom an attachment has been granted. If the offence be of a heinous nature, and the person attending the Court upon such a rule to answer it, or appearing upon an attachment, be apparently guilty, the Court will generally commit him immediately, in order to answer interrogatories to be exhibited against him, in relation to such contempt. But if there be any favourable circumstances to extenuate or excuse the offence, or, if it appear doubtful, whether the party be guilty of it or not, the Court will, generally, in their discretion suffer the party, having first given notice of his intention to the prosecutor, to enter into a recognizance to answer such interrogatories; and if no such interrogatories be exhibited within four days after such recognizance, will discharge the recognizance upon motion; yet, if the party do not make such motion, and the interrogatories be exhibited after the four days, the Court will compel him to answer them.
In all the cases above mentioned, if the party fully purge himself upon oath, in his answer to such interrogatories, of the whole matter charged upon him, the Court will discharge him of the contempt, and leave the prosecutor to proceed against him for the perjury, if he think fit; but if the party confess part of the contempts in his answer to such interrogatories, and deny others, the Court will not discharge him from the contempts so denied, but will proceed further to examine the truth of them, and will inflict
a See Ch. Archb. 1516, 1520; White b See 2 Chit. Archb. 1522. v. Chapple, 4 C. B. 628.