ex Contractu.. is therefore conceived that the rule as above stated, may let. In Form yet be considered as law, and which is to a certain degree sanctioned by the Acts of Parliament, inhibiting the arrest of aliens. (t) of insur ance. As a policy of insurance is merely a contract of indem- On policiesnity, a defendant cannot be holden to bail either for a total or partial loss, unless there has been an adjustment or express promise to pay the loss; and this rule obtains, although the defendant may have made an unqualified offer to pay a part of it, on the ground, that the action is in its nature, no more than a claim for unliquidated damages, upon a contract of indemnity. (u) for costs. It is a general principle of law, that an action will not On allocatur lie on a mere order or rule of court.(x) On this principle the Court of Common Pleas determined, that a defendant could not be holden to bail, in an action founded on the prothonotory's allowance of costs. (y) The right to bail in an action of covenant is regulated In covenant. and governed precisely by the same rules as the action of assumpsit. Thus when the covenant is for the payment of a sum certain, as for the arrears of an annuity, mortgage-money, rent, &c. the covenantor may be holden to bail as of course; but where the breach of covenant is for not repairing or not indemnifying, or for similar breaches, and the amount of damages uncertain; the defendant cannot be holden to bail, without a special order be obtained for that purpose. General As the action of debt is in legal consideration, a remedy In debt. for the recovery of a debt eo nomine et in numero, and not rule. (t) 38 G. 3. c. 50. s. 9. 41 G. 3. c. 106. (u) Lear v. Heath, 5 Taunt. 201. s. c. ming v. Forester, 1 M. & S. 494. 42 G. 3. c. 92. 55 G. 3. c. 54. Smith v. Whalley, 2 B. & P. (r) Emerson v. Lashley, 2 H. Bl. 248. 484. Carpenter v. Thornton, 3 B. & A. 52. (y) Fry v. Malcolm, 4 Taunt. 705. See Anon Lofft, 305. exContractu. 1st. In Form strictly for a compensation in damages, though generally awarded for the detention of the debt; it follows, that in an action of debt on simple contract, where the sum due amounts to 151. the defendant may be holden to bail. On bonds generally. On bonds for the per In debt on bond, conditioned for the payment of money, the plaintiff is entitled to the security of bail, for the principal and interest due upon it; but this right is confined to the sum actually and really due by the condition; as the penalty, though strictly speaking, the legal debt, is now considered merely to be a security for the due payment of the principal, interest and costs. (z) This equitable rule owes its origin to the statute of Anne, (a) which enables the defendant to discharge and satisfy the bond, by bringing into court the principal and interest then due. Where a bond is conditioned for the payment of an annuity or money by instalments, the exercise of the right to hold to bail should be limited to the arrears actually due; but it is conceived, that where the bond, though conditioned for the payment of money by instalments, is expressly agreed that if default be made in any one payment, the bond is to be put in force for the whole principal and interest then remaining due, that in such a case the right to the security of bail need not be confined to the particular instalment over due, but may be obtained for the whole principal and interest. (b) Bail in an action of debt upon a bond to perform coveformance of nants, can only be required for the amount of the damages actually sustained by the breach, and if the defendant be holden to bail for the penalty, he will be discharged on covenants. (2) Stinton v. Hughes, 6 T. R. 13. Wildey v. Thornton, 2 East 409. Hatfeild v. Linguard, 6 T. R. 271. (a) 4 Anne, c. 16. s. 13. Van Sandau v. (b) Tighe v. Crafter, 2 Taunt. 387. one &c. 1 B. & A. 214. ex Contractu. entering an appearance or filing common bail. (c) In 1st. In Form cases of this description, it should be made obvious and manifest to the court, that a covenant had been entered into; that a bond had been given for its due performance; that a breach had been committed, and that the damage sustained in consequence of such non-performance, amounted to a specific sum. A mere general statement, that the defendant covenanted to pay the balance of an account, but had failed in its performance, is insufficient. (d) The right to an indemnity can only be co-extensive with On bonds to indemnify. the liability incurred, and the loss resulting from that liability; therefore in debt upon a bond conditioned to indemnify, the defendant ought not to be holden to bail for the penalty, but only for the amount of the damage actually sustained. (e) In all cases, where the penalty is in the nature of liquidated damages, as where a bond is conditioned for the performance of a promise of marriage, (ƒ) and in other similar instances, where the penalty constitutes the actual debt, the transaction itself repelling any other medium of collecting the nature, extent, and estimation of the injury sustained, the party may be held to bail. It is an evil guarded against by a penalty; an infraction of the condition creates a positive and specific claim; therefore such stipulations form an exception to the above rules. On bond penalty is where the the real debt. The plaintiff in an action on a bottomry or respon- On bottomdentia bond, is entitled to bail, subject to the restrictions ry bonds. applicable to bail, on bonds in general. (g) (c) Boothsby v. Buller, Sid. 63. Anon, 1 Salk. 100. Hatfeild v. Linguard, 6 T. R. 217. Edwards v. Williams, 5 Taunt. 247. Imlay v. Ellefsen, 2 East 453. and see Biddolph v. Temple, 1 Lev. 260. Noy 88. 2 Roll. Rep. 53. (d) Whitfield v. Whitfield, Barnes 109. See Stinton v. Hughes, 6 T. R. 15. Hatfeild v. Linguard, 6 T. R. 217. et supra. (e) Whitfield v. Whitfield, Barnes 109. Kirk v. Strickland, 2 Doug. 448. (ƒ) Kirk v. Strickland, 2 Doug. 448. 449. Kettelby. Woodcock, Barnes 86. (g) Deflowr u. Tutt, Ca. Prac. C. P. 34. Lear v. 1 Marsh. 19. s. c. Heath, 5 Taunt. 201. 1st. In Form exContractu. On bail bond. On recognizance of bail. A person who has become bail for another, cannot himself be holden to bail. The practice in this respect is uniform in all the courts; that the sheriff or his assignee shall not hold to bail either the defendant, or his bail, in an action on the bail bond. (h) The usual compulsory process to obtain payment is here unnecessary. For though in the ordinary transactions between man and man, the creditor cannot always know the solvency of the party, whom he is to trust, that reason ceases to operate, when applied to bail: the sheriff has a discretionary power to accept or reject such bail, as may be tendered; his duty is to have solvent persons. If he does not avail himself of this right, the evil consequences accrue to himself. (i) No inconvenience can result to the plaintiff in the action, as it is optional, whether he will take an assignment of the bail-bond or not. But bail in the original action, after judgment recovered against them on the bail-bond, may be holden to bail in an action on such judgment. (k) This case is distinguishable from the general principle, that bail shall not be holden to bail; that rule is established on the ground that the arrest is for the same cause of action; but after judgment recovered against the bail a new claim is created; it includes a new cause of action, namely, the costs of the former suit. On the same ground, in an action of debt upon a recognizance of bail, the plaintiff cannot obtain such security, for their sufficiency must have been proved or admitted, prior to their being allowed. Indeed if such a practice was tolerated, there might be bail in infinitum. (h) Mellish v. Petherick, 8 T. R. 450. Brander v. Robson, 6 T. R. 336. Prendergast v. Davis, 8 T. R. 85. (1) Etherick v. Cowper, 1 Salk. 99. 1 Ld. Raym. 425. s. c. and see 10 Co. 99, 100. Rex v. Daws, 2 Salk. 608. (k) Prendergast v. Davis, 8 T. R. 85. Butt v. Moore, cited Tidd. 194. The preceding rules apply also to replevin bonds. In the 1st. In Form case of the Duke of Ormond v. Brierly, (1) the Court ob- excontracty On replevin served, that in an action upon a replevin bond, common bonds. bail must be filed. Where a cause, in which the defendant has been On awards. holden to bail is referred to arbitration, and the arbitrators award to the plaintiff a sum exceeding fifteen pounds, the defendant may be holden to bail, notwithstanding the apparent objection that the award is for the same cause of action as constituted the subject matter of the former suit. (m) Such an action not being vexatious, there is no analogy between it and an action upon a judgment. The first action was put an end to by the reference; a new cause of action arose by the arbitration, distinct in its nature, and in its ulterior proceedings, unconnected with the prior suit. ments. The right to have the security of bail, in an action of On judgdebt on a judgment, depends, first, on the amount of the debt recovered, secondly, whether the party has or has not been holden to bail in the original action. amount of covered. In consequence of several decisions in the courts of 1st. Of the King's Bench (n) and Common Pleas, (o) that a defendant the debt remight be arrested and held to special bail, in an action on a judgment for ten pounds, for damages and costs, although the original debt alone was under that amount, the statute 43 G. 3. c. 46. s. 1. was passed, which enacts, that "no person shall be arrested or held to special bail upon any process issuing out of any court in England or Ireland, for a cause of action not originally amounting to the sum () 1 Salk. 99. see Carth. 519. (m) Collins v. Powell, 2 T. R. 756: (n) Lewis v. Pottle, 4 T. R. 570. (o) Nightingale v. Nightingale, 2 Bl. Rep. 1274. Bilson v. Smith, Pr. Reg. C.P. 59. Nichols v. Wilder, Barnes, 432, Pr. Reg. C. P. 60. s. c. Ꭰ |