CHAPTER VIII.

BAIL.

(a) The precept in the writ is not only to take the body of the defendant, but him safely keep." One method of keeping is by committing to jail, which the officer may do for his own safety and convenience, unless the defendant avail himself of the privilege of giving bail.1

1. When bail is taken on mesne process, it shall be by bond to the sheriff, if taken by him or his deputy, otherwise to the officer making the arrest, with condition that the defendant will appear and answer to the suit, and abide final judgment thereon and not avoid. The bond shall be returned with the writ, and the clerk shall note on the writ that a bail-bond is so filed.2

2. No officer shall be obliged to accept a bail-bond unless signed by two sureties, at least, having sufficient property in the county in which the principal is arrested or held in custody; and if he takes a bail-bond with only one surety, he shall be liable to the plaintiff for any deficiency thereof.3

3. A bail-bond shall bind the obligors though signed by only one surety, or when signed by two or more sureties, when all or any of them had not sufficient property in the county.*

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(b) If it appears upon examination under writ of habeas corpus granted for the purpose, that any person is imprisoned on mesne process for want of bail, and the court or justice thinks excessive bail is demanded, reasonable bail shall be fixed, and on giving it to the plaintiff he shall be discharged; and when a person imprisoned for a bailable offense has, for want of sufficient bail, been remanded by the court or justice with an order expressing the sum in which he shall be bound to appear, a justice of the peace may at any time before the sitting of the court bail the party pursuant to such order."

R. S. c. 85, § 2.4 R. S. c. 85, § 3.

1 Howe's Pr. 181.-2 R. S. c. 85, § 1. R. S. c. 99, §§ 6, 8, and 9.- R. S. c. 99, § 17.

4. Any bail may, before the action is entered, exonerate himself from all liability, by surrendering his principal to the jail in the county where the arrest was made, or in the county where the writ is returnable, and within fifteen days thereafter leaving with the jailer an attested_copy of the writ or process whereby the arrest was made, of the return indorsed thereon, and of the bail-bond, and notifying, in writing, the plaintiff or his attorney of the time and place of the commitment; and the jailer shall receive him into custody, as if committed by the officer making the arrest."

5. If judgment is rendered against the principal in the action in which the bail is taken, the clerk of the court, or trial justice issuing the execution on the judgment, shall insert, on the margin thereof, the names of the bail, their addition and place of abode if inserted in the bail bond; and if the debtor is committed to jail, the clerk or justice shall note in like manner the jail to which he is committed.3 4

6. The officer holding the execution, fifteen days at least before its expiration, whether the debtor has given bail to the arresting officer or the jailer, shall notify thebail personally, or by leaving a notice in writing by him signed, at his usual place of abode, if in the officer's county, certifying that he cannot find the principal debtor, or property wherewith to satisfy the execution, for which he may demand and receive of the bail the usual fee for the service of a writ, and for travel from the dwelling-house of the officer to the dwelling-house of the bail, and shall minute in said notice the amount of the fees which the bail shall pay in twenty days, unless, one day at least before the execution is returnable, the bail produce and deliver to the officer the principal debtor."

(c) The requiring the sheriff to notify the bail fifteen days before the return day of the execution, does not excuse him from making diligent search for the body and goods of the debtor.10

7. If the bail do not surrender the principal as aforesaid, they may, at any time before final judgment in the original suit, bring him into court where the action is

R. S. c. 85, § 4. R. S. c. 85, § 5.— R. S. c. 85, § 6.-10 Kidder v. Parlin, 7 Me. 80.

pending, and deliver him into the custody thereof, and be thereby discharged."

(d) The final judgment is the first upon which the plaintiff may sue out execution. 12

8. In case of the avoidance of the principal, and return on the execution by the officer that he had had it in his hands at least thirty days before its expiration, and that the principal was not found, his bail shall satisfy the judgment, with interest thereon from the time when it was rendered, unless they discharge themselves by surrendering the principal before final judgment against them on the writ of scire-facias, or by some other sufficient defense.13

9. When the principal so avoids, and his property cannot be found to satisfy the execution, the original creditor may have a writ of scire-facias, in his own name, from the same court, against the bail, in vacation or in term time, to be sued out within one year from the rendition of judgment against the principal, and need not declare on the bail-bond, but merely allege that the defendants became bail in the original action.14

(dd) Scire facias and not debt is the remedy on a bail bond.14α 10. The bail may plead, jointly or severally, that they never became bail as alleged in the writ, and under that plea may avail themselves of every defense which would avail them in an action of debt on the bond, on the plea that it is not their bond; or may show any special matter of discharge, filing a brief statement thereof as provided by law.15

11. The bail may surrender the principal in court before final judgment on the scire-facias, and on paying all the costs on the scire-facias, they shall be discharged; and the principal shall be committed to jail to remain for the space of fifteen days; and if the creditor does not, within that time, take him in execution, the sheriff shall discharge him on payment of the legal prison fees.1

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12. When bail is taken on mesne process in an action returnable before a trial justice, and there is a return on the execution issued on the judgment therein, that the

11 R. S. c. 85, § 7.-12 Sweet v. Sullivan, 7 Mass. 342.-13 R. S. c. 85, § 8.-14 R. S. c. 85, § 9.-1ía Packard v. Brewster, 59 Me. 404.-15 R. S. c. 85, § 10.-18 R. S. c. 85, § 11.

principal is not found, the justice may issue a scire-facias thereon against the bail to be served seven days before the day of trial; and if no sufficient cause is shown to the contrary, he may render judgment for the debt and costs recovered, with interest thereon from the rendition of judgment, against the principal, and issue execution accordingly, notwithstanding the debt and costs on the original judgment exceed the sum of twenty dollars.1

13. If the bail, at any time before final judgment in the original suit or on scire-facias, brings the principal before the justice, and procures the attendance of an officer to receive him, the justice shall make a record of the surrender, and order him into the custody of the officer to be committed to jail, to be proceeded with as mentioned in the preceding sections; and on payment of costs on the scire facias, the bail shall be fully discharged.18

(e) If the defendant in an action of scire-facias against him as bail, before a justice of the peace, procures a constable to attend the court to receive the principal on being surrendered by the bail, and the service is performed by the constable, this is sufficient to enable him to recover of the bail the fees to which he was by law entitled.19

14. The officer shall attend before a justice for such purpose, when requested; and shall be allowed therefor the same fees as for arresting and committing a defendant on mesne process; and for neglect of official duty in such case, he shall be answerable for all damages to the party injured thereby.20

15. If the principal is surrendered before final judgment in the original suit, the bail shall deliver to the officer a copy of the writ, with the return thereon, attested by the justice; if, after such judgment, the bail shall deliver a copy of the entry of surrender, attested by the justice; and in either case the officer shall deliver it to the jailer with the prisoner; and it shall be a sufficient warrant to the officer for receiving and conveying him to jail, and to the jailer for holding him in custody."

16. Bail may have their remedy against their principal, by an action on the case, for all damages sustained by them by reason of their suretyship.22

17 R. S. c. 85, § 12.-18 R. S. c. 85, § 13.-19 Thompson v. Wiley, 20 Me. 479.20 R. S. c. 85, § 14.-21 R. S. c. 85, § 15.-22 R. S. c. 85, § 16.

17. Liability of bail. No scire-facias shall be served on bail unless within one year next after judgment rendered against the principal.28

(f) When by the act of God, or act of the government, or by sentence of the law, the principal is removed or taken from the custody or control of the bail, before they are fixed, so that they cannot surrender him, to enable the creditor to charge him in execution, and that without fault on their part, then the bail are entitled to their discharge.24

(g) A judgment upon which no execution can lawfully issue against the body of the defendant operates ipso facto to discharge bail.25

(h) A voluntary enlistment into the military service will not exonerate bail.26

(i) Bail will not be discharged by death of the principal after return day.27 Bail are therefore liable to be absolutely fixed by the death of the principal, at any time during the pendency of a writ of scire-facias.28

(j) Bail are also discharged by a discharge in bankruptcy or insolvency.29

(k) Generally, the same acts which will dissolve an attachment, will exonerate bail, such as amendments, whereby new causes of action are introduced, or a reference of all demands between the parties, unless it appear that the referees did not consider any new demand.3)

(1) The rights of bail over their principal are quite extraordinary. As the bail has the custody of the principal, they may take him at all times and in all places, on Sunday as well as on any other day, or during his attendance at court, or in any State in the Union, or in any foreign country. The taking is not considered as the service of process, but as a continuation of the custody which had been, at the request of the principal, committed to the bail. The dwelling-house is no longer the castle of the principal; but if the door should not be opened on demand at midnight, the bail may break it down, and take the principal from his bed, if that measure should be necessary.31 And the bail may depute this authority to a third person,32

23 R. S. c. 81, § 82.-24 Way v. Wright, 5 Met. 384.-25 Gilman v. Perkins, 11 N. H. 343.-20 Harrington v. Dennie, 13 Mass. 92.-27 Bradford v. Earle, 4 Pick. 120.-28 Colby's Pr. 149.-29 Champion v. Noyes, 2 Mass. 481.-30 Seeley v. Brown, 14 Pick. 177; Colby's Pr. 147.-31 Com. v. Brickett, 8 Pick. 139, and cases infra.— 82 Nicolls v. Ingersoll, 7 Johns, 145.