Not required at common law. CHAPTER XV. · Of Bail in Outlawry. AT common law the defendant could not be bailed, when taken by the sheriff on a capias utlagatum. (a) But by the stat. 4 and 5 W. and M. c. 18. s. 4, 5. it is provided that "if any person outlawed in the Court of King's Bench, other than for treason and felony, shall be taken and arrested upon any capias utlagatum out of the said court, the sheriff making the arrest may, in all cases where special bail is not required by the said court, take an attorney's engagement under discharged his hand to appear for the defendant, (b) and reverse the outlawry, and may thereupon discharge the derequired. fendant from such arrest." But it is not necessary that the defendant should appear before he moves the court to reverse the outlawry, (c) though the contrary was determined formerly. (d) How defendant when spe cial bail not How de The statute then goes on to enact, "that in those fendant cases where special bail is required by the said discharged when specourt, (e) the said sheriff shall and may take security cial bail of the defendant by bond, (ƒ) with one or more suffirequired. cient surety or sureties, in the penalty of double the sum for which special bail is required, and no more, for his appearance by attorney in court, at the return (a) Trye, 73. 3 Burr. 1484. 4 Burr. 2540. 23 H. 6. c. 9. 13. Car. 2. stat. 2. c. 2. s. 4. and see R. H. 2 Car. 1. s. 5. M. 1654. s. 9. H. 15 and 16 Car. 2. M. 17 Car. 2. T. 2 Jac. 2. C. P. (6) By the Common Law the outlaw must have appeared in person, Cro. Jac. 462. 2 Salk. 496. Sty. 297. (c) 1 B. and Ald. 131. K. B. and see 4 Taunt. 694. C. P. (d) 14 East, 536. (e) See ante, 30. for what causes of action a party may be held to bail. (f) This part of the act appears to be compulsory on the sheriff, 3 Burr. 1482. when spe of the writ, and to do and perform such things, (g) How deas shall be required by the said court; and, after such fendant bond taken, may discharge the defendant from the said discharged arrest. And in case the defendant shall not be able to cial bail acgive security as aforesaid, before the return of the writ, quired. he shall and may be discharged, whenever he shall find sufficient security to the sheriff, for his appearance by attorney, (h) in the said court, at some return in the ensuing term, to reverse the outlawry, and to do and perform such other thing and things (g) as shall be required by the said court. (¿). In what cases bail may be taken in outlawry. This statute has been construed not to extend to criminal cases, at least to misdemeanors after convic tion. (j) And even in civil cases the defendant cannot be bailed, if he were not bailable upon the process on which he was outlawed. Hence he cannot be bailed when taken upon an outlawry after judgment; (k) and although when an outlawry has been duly reversed, goods taken on a special capias utlagatum will be restored as a matter of course; yet the courts will not order them to be restored on the above statute. (1) It is At what not necessary that an affidavit (when requisite) should time affida have been made before the outlawry; (m) nor the sum vit may be sworn to indorsed on the capias utlagatum, as it recites a special original specially expressing the cause of action: (n) but it is sufficient if an affidavit be made before the defendant is discharged, the Court having determined that process of outlawry is not within the statutes for preventing frivolous and vexatious arrests.(o) The Court of King's Bench refused to relieve a bankrupt upon motion, who had been outlawed, and afterwards arrested, and his goods taken by the sheriff, except upon the terms of appearing to the action, and (g) The meaning of these words is, that the defendant shall put in bail to a new ac⚫ tion, plead within a limited time, &c. 4 Burr. 2540. Per Yates, J. (h) By the common law an appearance in person was required, Cro. Jac. 462. And see 2 Salk. 496. (i) See R. H. 2 Car. 1. s. 3. C. P. 3 Burr. 1483. (j) 4 Burr. 2539, 40. per (1) 2 Wils. 127. per Cur. M. (m) 2 Str. 1178, 9. 1 Wils. 3. S. C. Fortesc. 39. (n) 3 Burr.1484. per Yates,J. () Fownes v. Allan, cited 3 Burr. 1483. Barnes 322. made. Of reversing outlawry in the case of bank ruptcy. Of revers ing outlawry in the case of bankruptcy. Of a writ of error for reversing an out lawry. Form of the putting in and perfecting special bail, although the plaintiff had proved her debt under the commission, and received a dividend, after which the action was commenced for the balance. (p) And it appears that bankruptcy, and a certificate, are no grounds for discharging a prisoner in custody on a capias utlagatum.(q) When a writ of error is brought for reversing an outlawry for want of proclamation, the statute of 31 Eliz. c. 3. s. 3. (r) requires "that the defendant in the original action shall put in bail, not only to appear and answer the plaintiff in a new action, to be commenced for the cause mentioned in the former, but also to satisfy the condemnation money, if the plaintiff shall begin his suit before the end of two terms next after allowing the writ of error, or otherwise avoiding the said outlawry." (s) And it is now determined that in reversing the outlawry for other errors in law, besides the want of proclamations, the courts have a discre tionary power to require bail or not; for though the 31 Eliz. c. 3. s. 3. is the only act that expressly requires bail, it is not to be inferred from thence that in other cases it ought not to be insisted on, for that act makes a new error, and the bail upon it are absolutely to pay the condemnation money. Prior however to the case of Serecold v. Hampson, (t) this point was involved in considerable doubt; (u) The present criterion whether common or special bail is requisite is the same as in the original proceedings. (x). As to form, the recognizance, when special bail is rerecogni- quired, is in the alternative, either to pay the condemnazance, &c. tion money, or render the defendant.(y) It is not, howe ever, necessary that bail should be put in before the allowance of the writ of error: but it is sufficient if it be put in at any time before reversal. (z) In a late case it was determined, that upon a writ of error prosecuted by (p) 14 East. 535, 6. (r) And see 2 Salk. 496, (t) 2 Str. 1178, 9, 1 Wils. (u) Carth. 459. 1 Ld. Raym. 349. S. C. Id, 605. 12 Mod. 545. S. C. 2 Salk. 496, 500. And see Martin v. Duckett, 2 Str. 951. Wall, Wotton, cited 1 Wils. 4. (x) See ante, Chap. I. p. 30, (y) 4 Taunt. 691. And see 12 East. 622. 1 M. and Sel. 409.1 B. and Ald. 131. (2) 1 Ld. Raym. 605. 2 Str. 951. 2 Barnard. K. B. 293. S. C. nizance, a defendant in person, to reverse an outlawry in a civil Form of action for a common law error, the recognizance of the recogbail should be taken in the common alternative form, &c. to pay the condemnation money, or render the principal, and not absolutely to pay the condemnation money as in case of reversals of outlawry upon stat. 31 Eliz. c. 3. for want of proclamations, or upon stat. 4 & 5 W. and M. c. 18. s. 3. on appearance by attorney, and by motion. (a) In the case of Graham and another v. Grill, (b) the Court upon motion reversed the outlawry of the defendant in a civil suit, upon his putting in bail in the alternative, to satisfy the condemnation money, or render the principal; and paying all costs, including costs, if any, in the Court of Exchequer, without requiring the recognizance of bail to be for the payment of the condemnation money absolutely. (For the method of giving notice, justifying, &c. Subsequent after bail have been put in in outlawry, see ante 97, and subsequent pages.) (a) 12 East. 622. 4 Taunt. 691. (6) 1 M. and Sel. 409. And see 1 B. and Ald. 131. 12 East. proceedings. In what CHAPTER XVI. Of Bail on Habeas Corpus, or Certiorari. 66 FORMERLY, the defendant was obliged always to put in special bail upon a habeas corpus, or certiorari, except in actions for trifling assaults, or for words, or where the defendant was an executor or administrator: unless otherwise ordered by a judge. (a) But subse quently, it was enacted by 19 Geo. 3. c. 7. s. 16., that special bail shall not be required on a certiorari, or habeas corpus, unless the cause of action amounts to 10/. or upwards," which was afterwards extended to the sum of 15%., by 51 Geo. 3. c. 124. s. 3. But it is conceived as the latter act has expired, (b) that the amount for which bail would be required upon the removal of a suit by habeas corpus, or otherwise, is now reduced to 10%. Hence where the cause of action is under the latter sum, the defendant will not be compelled to put in special bail above, but must before the cause can be removed, enter into a recognizance to the plaintiff in the inferior court, with two sufficient sureties for the payment of debt and costs, &c.; (c) and upon the removal of causes from any court of inferior jurisdiction, into the Common Pleas at Lancaster, where the cause of action does not amount to the sum of 10. or upwards, a similar recognizance is required by the 34 Geo. 3. c. 58. s. 2. If the defendant be in actual custody on mesne process at the return of the certiorari or habeas corpus, he must put in and perfect special bail before the Court will discharge him. (d) It is usual, therefore (a) R. M. 1654. s. 9. R. H. 2 & 3 Jac. 2. K. B. R. M. 1649. reg. 2. R. M. 1654. s. 12. C. P. 1 Salk. 98. 102. (b) See ante, 30. (a). (c) 19 Geo. 3. c. 70. s. 6. (d) R. M. 1654. s. 7. R. H. 2 Jac. 2. (a). K. B. R. M. 1654. s. 10. C. P. |