or insolvent, (2) time will generally be given to add and justify other bail. (a) But the courts will not do so if the bail were insufficient at the time of being put in, as being attornies, (b) uncertificated bankrupts, (c) &c. And in the Court of Common Pleas, when the court gives time to one of the bail to justify, before a judge at chambers in vacation, a judge's summons for further time, returnable before the original time has expired, operates as a stay of proceedings. (d) Time allowed to rors and justify, amend er when not. when. The courts will likewise grant time to the plaintiff, Time alto make enquiries respecting the character, situation, lowed to and circumstances of the bail, if on their examination plaintiff, they give evasive answers, (e) or answers which cause a suspicion of their sufficiency, (ƒ) or if the plaintiff be taken by surprise, not expecting (in consequence of a statement of the bail) that he purposed coming up to justify. (g) And when the plaintiff is allowed time under any of the above circumstances, the defendant will be permitted to put in fresh bail. (h) But in the case of bail by affidavit, where time was given to answer an affidavit on the part of the plaintiff, that the bail was a prisoner for debt, it was held that the defendant could not give notice of and justify fresh bail, before the affidavit was answered. (¿) (2) 1 Chit. Rep. 3, 4. (a) Id. 2. (b) (b) 1 Chit. Rep. 8. and see id. 2. (b) ante, 132. (c) 1 Chit. Rep. 3. ante, 131 to 136, for the grounds of rejection for incapacity, and see 1 Chit. Rep. 7, 88, 144. But see id. 288, 316. (d) 6 Taunt. 240. How far bail liable on their re- ance. CHAPTER XII. Extent of Liability of Special Bail. We have already seen that when bail are once put in, they remain liable on their recognizance until their names are struck out of the bail piece, (a) whether they justify or not. And formerly in the King's Bench, the liability of bail in one action extended to all actions brought by the same plaintiff during the same term to an unlimited amount; (b) and subsequently where the plaintiff declared for, and recovered a greater sum than was expressed in the ac etiam, the bail were wholly discharged. (c) But this singular practice having been altered by certain rules of court, (d) they are not at present answerable in that court on their recognizance, beyond the sum sworn to, and by an extension of the latter of the rules, to the costs of the action in which they are bail. (e) And where the plaintiff recovers more than the bail are bound in, the latter will be liable pro tanto. (f) The Court of King's Bench will therefore stay proceedings in an action on the recognizance, or order an exoneretur to be entered on the bail piece, upon payment of the sum sworn to and costs, although less than the damages recovered, or than the sum named in the process, (g) as well by original as by bill; (h) and notwithstanding upon cause shewn, it may appear that the defendant is gone abroad, and that the plain (a) Ante, 101. (n) (b) Cro. Jac. 449. (b) 2 Sid. 163. 1 Mod. 16. 2 Show. 183. (c) 6 Mod. 266. 1 Salk. 102. (d) R. T. 22 Car. 2. R. E. 5 Geo. 2. reg. 2. K. B. (e) Lofft, 545. 1 Doug. 330. 2 Str. 922. 6 T. R. 246. 1 East, 85, 6, 91. (n) 6 East. 312. 2 Smith, 402. S. C. 4 Moore, 167. 5 M. and Sel. 511. Peter- (g) 1 East, 85, 6, 91. (n) 6 East, 312. 2 Smith, 402. S. C. and see the cases cited, supra note (e). (h) 6 East, 312. any bail liable on their recogniz ance. In K. B. tiff has recovered a larger sum than that sworn to. (i) How far Bail above are not however liable for other causes of action, than those specified in the affidavit, whereon the defendant is holden to bail, (k) or to pay the costs of a writ of error, (1) or equitable costs. (m) Neither are they liable for interest on the sum recovered, accruing subsequent to the judgment, (n) or as sureties for the debt of a bankrupt within the meaning of 49 Geo. 3. c. 121. s. 8. (0) And although bail by rendering the defendant, may instigate him to vexatious attempts to obtain his discharge under an insolvent act, the court will not compel them to pay the costs of the plaintiff which have occurred in resisting those attempts. (p) But if an action of debt be duly commenced against the bail on the recognizance, after the time for rendering their principal has expired, they must pay their own costs, as well as the debt and costs in the original suit. (q) And they are likewise liable to the costs of a scire facias, if they plead or join in demurrer, but not otherwise. (r) In the Common Pleas, each of the bail is liable on In C. P. the recognizance, to double the amount of the sum sworn to; (s) although in the King's Bench we have seen it is otherwise: (t) and the former court will not vary its practice on motion. (u) Also where bail are taken under a judge's order in that court, each of the bail is liable to double the sum ordered, the order being considered equivalent to the affidavit in other cases. (x) In the Exchequer it is a rule, (y)" that upon a In Ex. How far bail liable on their re cogniz ance. In Ex. recognizance of bail in any action brought in that court, the bail therein are not jointly or severally liable in such action, for more in the whole than the amount of the sum sworn to in the affidavit of the cause of action, together with the costs of such action, unless any proceeding be had on their recognizance, in which case they will also be subject to such other costs as they are by law liable to." CHAPTER XIII. By what means Special Bail discharged. HAVING seen the extent of the liability of bail above, By render. we shall proceed to point out the means by which they may discharge themselves, or be discharged from responsibility. The method of discharge of most frequent occurrence By whom is that of rendering the principal, which is con- render sidered equivalent to perfecting bail, (a) and may be made. done before or after judgment, and either by the defendant himself, without the aid of an attorney, (b) or by the bail put in by the defendant, or by the sheriff or his bail, or by the defendant's attorney in discharge of his undertaking. (c) In what cases bail may take principal for the purpose of And as the principal is always supposed to be in the custody of his bail, (d) they may take and render him at any time during the days of privilege, or even while in attendance on the commissioners of bankrupt, (e) or on a Sunday, (f) or while going to or attending on a court of justice. (g) Bail may even justify entering rendering the house of a third person, in which the principal him. resides, (the outer door being open) in order to seek for him for the purpose of rendering him. (h) They may also use force, (i) or call in the aid of third persons, who may detain the principal although the bail be not present. (k) Yet it has been said when the (a) 4 Taunt. 669. per Cur. 2 M. and Sel. 562. per Ellenborough, C.J. 3 M. and Sel. 283. 1 Chit. Rep. 446. (a) 498. and see 2 Blac. Rep. 758. (b) 2 Chit. Rep. 99. (c) Ante, 92. (i) (d) 4 Inst. 178. 2 Hawk. P. C. 88. 6 Mod. 231, 6. H (e) Ante, 20, 1. f) 6 Mod. 231. 1 Atk. 239. (h) 2 H. Blac. 120. (i) Peake's N. P. C. 168, 9. 3 Taunt. 425, 6. (k) 3 Taunt. 425, 6. |