Act of February 25, 1819-January 1, 1820. R. C. ch. 128. writ or subsequent process, the true species of action, and that bail is not required, in order that the sheriff may be informed how to govern himself in the execution thereof; and, in the cases before mentioned, the sheriff may take the engagement of an attorney practising in the court, from which the process issued, endorsed on the writ, that he will appear for the defendant or defendants, and such appearance shall be entered with the clerk in the office on the return day of the writ. And although no such engagement of an attorney shall be offered to the sheriff, he shall nevertheless be restrained from committing the defendant to prison, or detaining him in his custody, for want of appearance bail, but the sheriff in such case shall return the writ executed; and if the defendant shall fail to appear thereto, there shall be the like proceeding against him only, as is hereinafter directed against defendants and their appearance bail, where such is taken. Nov. 1645, act 14, 1 Stat. Larg. 305; Mar. 1657-8, act 34, Ibid. 448; Altered from Oct. 1777, 9 Stat. Larg. 404; 1788, c. 67; 1792, c. 66, 67, R. C. 5. 43. In all actions of debt, founded upon any writing obligatory, bill or note in writing, for the payment of money(c) or tobacco, all actions of covenant and detinue, and all actions upon statutes specially authorizing bail to be taken, the plaintiff may of right demand bail; and if he shall endorse on the original writ or subsequent process, the true species of action,(1) in such manner that his title to bail will appear thereby, and shall also endorse that bail is required, it shall then be the duty of the sheriff to take bail accordingly. Ibid. See post. No. 30. 6. § 44. In all other personal actions, it shall be lawful for any judge of the general court, or any justice of the peace for any county or corporation, upon (c) This enumeration does not include bonds with collateral conditions; or, any collateral engagements whatever. Ruffin v. Call, 2 Wash. 181; Metcalfe v. Battaile, 1 Gil. 191; Nadenbush v. Lane, 4 Rand. 413; Hatcher v. Lewis, 4 Rand. 152, applicable to endorsers of promissory notes. Bonds for the payment of money, accord. ing to the meaning of this provision, are clearly such, as if not single bonds, are to be defeasanced by the payment of a lesser ascertained sum, called the principal, and which no assessment by a jury is necessary to estimate and render certain :-bonds, which when declared on, do not require particular breach to be assigned, and on which a recovery is had, as of the debt due by the bond, and not, as of damages to be assessed by a jury. But, on the contrary, if there be no ascertained principal sum, for which judgment can be rendered-if the intervention of a jury be necessary to ascertain what is due, by way of damagesand, if defendant must be notified by a particular assignment of breaches, wherefore the action is brought against him, the bond is not for the payment of money or tobacco, but one with a collateral condition. See Roane, J. in Henderson v. Hepburn, 2 Call, 238, 239, &c.; and Lewis v. Harwood, 6 Cranch, 82. ments are due, the obligee may arrest for the aggregate amount of all the instalments, and the interest accrued due before the action brought. Talbot v. Hodson, 7 Taunt. 251. The endorser of a negotiable note, is only collaterally liable; his undertaking being to pay under certain circumstances: and, therefore, a judgment cannot be entered up against him, without the intervention of a jury. Metcalfe v. Battaile, 1 Gil. 191. Where a joint action is brought against drawer and endorsers of a negotiable note, bail of the endorsers cannot be demanded as of right: it can only be obtained from a judge or justice of the peace, on proper affidavit. In such an action, an office judgment cannot be confirmed against all or either of the defendants-and judgment cannot be entered up against them without a writ of enquiry. Hatcher v. Lewis, 4 Rand. 152. (1) If the writ be endorsed "Debt on Note," and the declaration count on a sealed instrument, 'tis a variance, which an office judgment will not cure, and may be taken advantage of by motion to the court to set it aside, or by writ of error. The endorsement, must be taken both in legal and common parlance, to mean debt on simple contract. Note, is always used as contradis tinguished from writing obligatory, which means a promise or agreement under seal. M'Kim v. Brown & Co. Cir. Ct. U. S. Virg. East. Dist. May 25, 1825. Cor. Marshall, C. J. Act of February 25, 1819-January 1, 1820. R. C. ch. 128. proper affidavit,(d) verifying the justice of the plaintiff's action, and shewing probable cause to apprehend that the defendant will depart from the jurisdiction of the court so that process of execution cannot be served upon him, [see tit. EXECUTION, No. 11,] to direct bail to be taken, by endorsement on the original writ, or subsequent process, and the sheriff shall govern himself accordingly.(2) Ibid. and Feb. 8, 1810, c. 47, ed. 1812; Oct. 1748, c. 59, 6 Stat. Larg. 203. 7. § 45. In all cases, where bail shall so have been required, by the endorsement of the plaintiff or his attorney, or of a judge or justice, the sheriff shall return on the writ, (e) the names of the bail by him taken, and shall return the (d) As to the strictness required in these affidavits, see Imlay v. Ellefsen, 3 East, 309; Taylor v. Forbes, 11 East, 315; Bell v. Thrupp, 2 Barn. & Ald. 596; M'Pherson v. Lovie, 1 B. & C. 108; Rowley v. Bayley, 11 Moore, 383. See 31 E. C. L. R. 153. Affidavit to hold to bail: in the sup. ct. &c. A. B. of the city of R. and county aforesaid maketh oath and saith, that X. Y. is justly and truly indebted to this deponent in the sum of $- lawful money, &c. for goods sold and delivered by this deponent, to the said X. Y. and at his special instance and request, and that this deponent doth verily believe that the said X. Y. will depart from the jurisdiction of this court so that process of execution cannot be served upon him. The general rule is not to receive counter affidavits on the merits. See Joulay v. Ellenford, 2 East, 453; Horsley v. Walsbab,7 Taunt. 235. It seems that the grounds of this belief should be stated; as that he hath given out that he intends, or that he hath threatened to leave the commonwealth. See Rhodes v. Cousins, 6 Rand. 188, 192-3; Oldham v. Oldham, 7 Ves. 410. Loisader et al. v. Moryoseph, 8 J. B. Moore, 366; Fricke v. Poole, 9 B. & C. 543. Semble, an affidavit before a justice to found an order requiring bail, ought to be in writing, the term affidavit importing an oath in writing. Quary, should this affidavit be filed with the process? To obtain an order to discharge bail, the proper course of proceeding is by rule to shew cause why the bail should not be discharged. After judgment by default, and writ of enquiry awarded, and after the defendant has left the state; held, a motion to discharge the bail comes too late. Hawkins v. Gibson, 1 Leigh, 476. By whom they may be made, see King v. Turner, 1 Chitty's Rep. 58, and note (a). As to affidavits made out of the commonwealth, how certified, and their effect, see Omealy v. Newell, 8 East, 364; Bland v. Drake, 1 Chitty's R. 165; and note (a) 168; Walker et al. v. Bamber et al. 8 Serg. & Raw. 61. Affidavit of agent or third person, sufficient. Ashby v. Kiger, 3 Rand. 50. The affidavit need not shew the connection between the deponent and the creditor. Holliday v. Lawes, 3 Bing. N. C. 541, relying on the authority of King v. Turner, 1 Chitty's R. 58, or rather yielding to it. See remarks of judges Park and Gaselee. (2) The general rule is, to take the bond in double the sum sworn to. Imp. Shff. 75; 1 Archb. Prac. 74. It is the duty of judge, or justice, to ascertain the penalty of the bond. See Oxley v. Turner et al. Gen. Ct. June T. 1813, Virg. Cas. 334. (e) If the writ be returned, "executed, and committed to jail for want of bail," and the return be accompanied by a bond, purporting to be a bail bond; the clerk cannot notice the bond: and therefore, a judgment entered up against defendant and bail, is erroneous as to the party mentioned in the bond. Henry v. Green, 4 Munf. 227. Henry v. Stone, 2 Rand. 455, when a sheriff has arrested a def. and taken appearance bail, but makes a return that the deft. is committed to jail, he loses his remedy against the bail on the bail bond. But, no one can be charged as bail, without a bail bond, duly executed and returned, as well as his name being duly returned on the writ. Shelton v. Pollock & Co. 1 H. & M. 423. Tho' the name of a person be in the body of a bail bond, if the bond be not signed by him, 'tis error to take judgment against him. Good v. Galt et al. Gilmer, 152. And, a writing, purporting to be a bail bond, but which specifies no sum to be paid by the obligor to the obligee, is a mere nullity. Harrison v. Tiernans, 4 Rand. 177; and see Powell v. Duff, 3 Camp. R. 181, and note. And the record must shew that the clerk had in his office the bail bond, or a copy thereof, to justify his entering judgment against a person as bail. Quarles v. Buford, 3 Munf. 487. A person returned as appearance bail, and bail bond accordingly, who denies that he executed the bond, may plead non est factum, after judgment confirmed against him in the office. Spotswood v. Douglas, 6 Munf. 312; or, he may obtain relief in equity, not being bound to take any step for his relief at law; for if he did not execute the bond, he had regularly no day in court. Spotswood v. Higginbotham, 6 Munf. 313. Act of February 25, 1819-January 1, 1820. R. C. ch. 128. bail bond or a copy thereof,(f) to the clerk's office, on the day of appearance.(y) And if the defendant shall fail to appear accordingly, and give special bail, (g) the bail for appearance may defend the suit, (h) and shall be subject to the same judgment and recovery,(3) as the defendant might or would be subject to, if he had appeared and given special bail. If the sheriff shall not return bail(i) and the bail bond, or a copy thereof, and the defendant shall fail to appear and give special bail, in such case the sheriff shall have like liberty of defence, and shall be subject to the same judgment and recovery, as is provided in the case of appearance bail. If the bail, returned by the sheriff, be objected to by the plaintiff, and be adjudged insufficient by the court,(j) and the defendant shall fail to give special bail, the sheriff shall thereupon be considered a party to the proceedings; and, without remanding the cause to the rules, he, together with the appearance bail, shall be subject to the same judgment and recovery, that the appearance bail alone would have been subject to, and shall be entitled to the same defence. Nov. 1645, Act 14, 1 Stat. Larg. 305; Mar. 1657-8, Act 34, Ib. 448; Mar. 1661-2, Act 46, 2 Stat. Larg. 79, 247; Oct. 1705, c. 19, § 22, 3 Stat. Larg. 294; Feb. 1727, c. 3, 4 Stat. Larg. 184; 1792, c. 66, and 67, R. C.; 1802, c. 30.(2) (f) Shelton v. Pollock & Co. 1 H. & M. 423; Quarles v. Buford, 3 Munf. 487. (y) A bail bond which recites a writ at the suit of A. B. adm'r, the writ being at the suit of A. B. ex'r is not sufficient error to reverse a judgment. A bail bond given to the sh'ff of county, is good. The condition of the bail bond need not designate the time and place of appearance. Payne v. Britton's ex'r, 6 Rand. 101. (g) Where appearance bail is required, the defendant cannot appear at the rules, without giving special bail. Bradley v. Welch, 1 Munf. 284. But he may appear in court, and plead, and then he is not bound to give special bail, unless ruled to do so by the court. Grays v. Hines, 4 Munf. 437; 6 Rand. 165. (h) Where the appearance bail has been admitted to defend the suit, and afterwards waives his plea, judgment should be entered against the principal, as well as against the bail. Lee's adm'r v. Carter et al. 3 Munf. 121; Wallace et al. v. Baker, 2 Munf. 334. If the defendant in an action of covenant, &c. die, after judgment by default against him, and his appearance bail, and before a writ of enquiry executed, the bail is discharged. Saunders v. Gains, 3 Munf. 225. If the court admit the principal to appear and plead without giving special bail, the bail for his appearance is thereby discharged. Grays v. Hines, 4 Munf. 437; 6 Rand. 165. The appearance bail, by defending the suit, does not become a co-defendant to every intent; he may relinquish his proceedings, and enter himself special bail; these provisions were not intended to increase the responsibility of appearance bail, but for their protection, &c. See Dunlops v. Laporte, 1 H. & M. 22; and Brooke, bail for Haire, Sup. Ct. Law, Henrico, April 19, 1819. (3) See Oxley v. Turner et al. 2 Virg. Cas. 334-5; Eib v. Pindall, 5 Leigh, 112. (i) If the sheriff arrests the party, and he escapes, the sheriff may make his return according to the fact; and the remedy against the sheriff, is by a distinct action, grounded on the escape, and not by an office judgment, against the defendant and sheriff, for his failing to return bail and bail bond. Waugh v. Carter, 2 Munf. 333. (j) See Stowers v. Smith's ex'r, 5 Munf. 401. (2) See act March 4, 1826, c. 22, Ses. Acts 1825-6, p. 22, § 1, 2, 3, 4, concerning bail in civil actions. 1. That hereafter when bail shall be lawfully required on any writ of capias ad respondendum, the officer executing the same shall not discharge the defendant from custody upon the execution of any bond for the appearance of such defendant, nor shall he take any such bond: The defendant, however, shall be discharged from custody, upon giving good special bail to the action, in manner herein provided, that is to say; at any time after the return day of the writ, the defendant shall be discharged, by giving special bail, in the manner now allowed by law, in cases in which the defendant is in custody for want of appearance bail. 2. At any time before the return day of A. B. (Seal.)" Act of February 25, 1819-January 1, 1820. R. C. ch. 128. 8. 46. Objections to the sufficiency of the appearance bail shall be taken,(k) either at the rules, or in court, at or before the first term after the return day of the writ, and not thereafter :(4) They shall be decided by the court, without delay, (Ibid.) ' and the burthen of the proof shall be on the party affirming the sufficiency.' [See note (2) on preceding page.] 9. 47. If the sheriff or appearance bail,' depart this life, before judgment be confirmed against him, in such case, the judgment may be confirmed against his executors or administrators; or, if there shall not be a certificate of probat or administration granted, then it may be confirmed against his estate; and a writ of execution may in either case be issued. Ibid. 10. § 48. In all cases wherein the bail being adjudged insufficient, judgment shall be rendered against the sheriff, his executors, administrators or estate, such sheriff and his representatives shall have the same remedy against the estate of the bail, as against the estate of the defendant. Rev. 1819. 11. § 49. In every case, where judgment shall be confirmed against any defendant or defendants, and the appearance bail, or the sheriff, or the executors, administrators or estate of such appearance bail or sheriff, the court, on motion of such bail or sheriff, or executors or administrators, or other person on behalf of the estate of such sheriff or bail, may order an attachment against the estate of such defendant or defendants, returnable to the next succeeding thereupon discharge the defendant from custody, and shall return the recognizance, together with the writ, to the office from which the writ issued, to be there filed and preserved among the papers of the cause. 3. That if the officer serving such writ shall discharge the defendant from custody, without bail, or shall not return the recognizance of bail to the office, with the writ, he shall be regarded, to all intents and purposes, as the special bail of the defendant, and may be proceeded against in the same manner as if he had entered into a regular recognizance of bail. But if he should prove to be insufficient as bail, then he and his securities shall be liable to an action on his official bond. 4. Exceptions to the sufficiency of bail taken by the officer in whose custody the defendant is, may be made by the plaintiff at any time before the trial of the cause; and if the bail be adjudged to have been insufficient at the time of taking it, the sheriff or other officer taking the same, shall be held bound with the bail, and responsible to the plaintiff, in the same manner as if he had united with the bail, as a joint and several cognizor, in the recognizance aforesaid. But if he should prove to be insufficient as bail, then he and his securities shall be liable to an action on his official bond. Exceptions to special bail, taken by the officer in whose custody the defendant is, for insufficiency happening after the recognizance taken; and exceptions to special bail taken by any other than such officer, may be made by the plaintiff at any time before final judgment; and if such exceptions shall be sustained by the judgment of the court, the court may rule the defendant to give other special bail, and in failure to do so within the time appointed, may refuse him permis sion to plead, or may set aside any plea already pleaded by him, and award a writ of enquiry, or otherwise proceed to judgment according to law, or may cause him to be arrested and committed to prison. This act takes effect 1st July 1826. See also act Feb'y 15, 1827, c. 28, § 1, 2, p. 26. 1. That no officer shall be in any manner liable for the insufficiency of bail by him taken upon the service of any writ of capias ad respondendum, unless exceptions to the sufficiency thereof be taken either at the rules, or during the first term of the court after the cause is placed on the court docket, upon an issue or issues of law, or of fact, made up by the pleadings at the rules, or upon office judgment or writ of enquiry, and not after: Provided, That nothing herein contained shall be construed or taken in any manner to alter or abridge any right of exception as between the parties to the suit; or for insufficiency of bail arising after taking the same, or for insufficiency of such bail taken by any other than such officer; but the same shall remain in all respects, as if this act had not passed. 2. That the liability as bail of any sheriff or other officer, incurred by discharging a defendant from custody, without bail, or for failing to return a recognizance of bail, or for taking insufficient bail, shall cease and determine, upon the entering of other good and sufficient special bail, at any time before final judgment. This act takes effect 1st April 1826. (k) If the plaintiff does not, in the first instance, except to the sufficiency of the appearance bail, he cannot afterwards object to receiving him as special bail. Dunlops v. Laporte, 1 H. & M. 22. (4) See Reynolds v. Gore, 4 Leigh, 276. Act of February 25, 1819-January 1, 1820. R. C. ch. 128. court, and upon the execution and return of such attachment, the court shall order the estate seized, or so much thereof as will be sufficient to satisfy the judgment and costs, and all costs accruing under the attachment, to be sold as goods taken in execution upon a fieri facias; and, out of the money, such judgment and costs shall be satisfied, and the surplus, if any, restored, to the defendant or defendants, when required. Act Nov. 1645, 1 Stat. Larg. 305; 1792, c. 66, R. C.(1) 12. § 50. In any personal action, in which bail shall not have been required, the court may at any time before final judgment, for good cause shewn,(3) rule the defendant to give special bail, and, on his failure to do so, may refuse him permission to plead, or may set aside any plea already pleaded by him, and award a writ of enquiry, or otherwise proceed to judgment according to law, or may cause him to be arrested and committed to prison. Alt. from 1792, c. 67, R. C.; and Oct. 1710, c. 11, § 17, 3 Stat. Larg. 511. 13. 51. Any judge of the general court, when not sitting in court, or any justice of the peace, or any mayor, recorder or alderman of a corporation, may take recognizance of special bail, in any action depending in any court of record within this commonwealth, which shall be transmitted by the person taking the same, (8) before the next succeeding court, to the clerk of the said. court,(7) to be filed with the papers in such action; the form of which recognizance shall be in substance as followeth, to wit: County, (or corporation,) to wit: Memorandum, that upon the day of in the year E. F. of the county of personally appeared before me, one of the judges of the general court, (or a justice of the peace for the county or corporation aforesaid,) and undertook for C. D. at the suit of A. B. in an action of now depending in the (here naming the court where the suit is pending) that in case the said C. D. shall be cast in the said suit, he the said C. D. will pay and satisfy the condemnation of the court, or render his body to prison in execution for the same, or that he the said E. F. will do it for him. ~ Given under my hand this day of G. H. Ibid. Feb. 8, 1810; May 1732, c. 5, 4 Stat. Larg. 328; March 1761, c. 10, 7 Stat. Larg. 403. 14. 52. The person taking such bail as aforesaid, shall, if required,(m) at the same time, deliver to the person or persons acknowledging the recogni (1) See the remarks of Green, J. in Henry v. Stone, 2 Rand. 462-3, &c. (3) "The law makes no distinction between cases in which bail might have been required, but was not so required, and cases where it could not have been required, and therefore was not. If it was not, in fact required, the party had an equal right to appear without giving special bail, unless required by the court, for good cause shewn, whether it was the one case or the other." Pr. Coalter, J. in del'g ct. op. in Hatcher v. Lewis, 4 Rand. 155. When an action has been brought, of such a nature, that the plaintiff could not of right demand bail, and there has been no direction by a judge or by a justice for bail to be taken, the court under this section may rule the defendant to give special bail, on good cause being shewn; which can only be done by affidavit verifying the justice of the plaintiff's action and shewing probable cause to apprehend that the defendant will depart from the jurisdiction of the court. The defendant being in embarrassed circumstances, rendering it difficult for him to pay small (8) See Dickinson v. Sizer et al. 4 Rand. 113, and Gilliam v. Allen, 4 Rand. 498, for the duties of appearance bail, in becoming special bail. (1) When the defendant wishes to appear at the rules, and appearance bail has been required, he is necessitated to avail himself of the provisions of this section. See ante. note (g) p. 106. (m) 'Tis a safe rule always to require a bail piece. See Evans v. Freeland, 3 Munf. 119. For the power of bail over their principal, see Nicoll v. Ingersol, 7 Johns. R. 145; Com'th v. Brickett, 8 Pick. 138; Respub. v. Carter of Phila. 2 Yeates, 263. |