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Of the Habeas Corpus ad faciendum et recipiendum, and herein of Bail upon such Writ.

IN all cafes where special bail was required in the court below, if the cause is removed by habeas corpus, either into B. R. or C. B. special bail must be put in above on the removal, though the debt is under 10/. except the desendant is an heir, executor, or administrator. Reg. Hil. 2 Jac. 2.

The above is the old rule—but now by the 19 Geo. 3. c. 70. as no one can be arrested or held to special bail in any inserior court, without an affidavit made and filed that the cause of action amounts to i0/. or upwards; it fallows, that where the debt is under 10 /. and the desendant is not arrested below, there he would not be obliged upon removal to find special bail above. But to defeat the advantage that might be taken of this, by removing the cause in order to delay the plaintiff, the same statute provides, that no action in an inserior court, not amounting to 10/. or upwards, shall be removed by habeas corpus, &c. unlefs the desendant shall enter into a recognizance, with two sureties, in the court below, in double the sum for which the action is brought, for payment of the debt and costs in case judgment shall pafs against him.

An heir, executor, or administrator, although he has put in bail btlow, shall not, upon removal, put in bail above to pay the condemnation money; yet he shall put in bail above to appear to a new bill or original, within two terms, but not after. But if debt is brought against an executor, on a judgment suggesting a devastavit, he shall give bail, for there the action is in the debet et detinet. Vide Salk. 98. and 1 Lev. 268. 2 Lev. 204.

No bail to be tendered, or put in upon an habeas corpus, until the habeas corpus, and cause for which bail is to be put in, be returned, to the end that it may appear for what cause the desendant is detained, and bail may be taken, and the habeas corpus and bail duly filed. Mich. 1654. Pas 29 Car. 2. Hil. ibW. 3.

A desendant who had removed a cause from an inserior court into B- R- or C. B. i6 not of course obliged to put in special bail there; but it lies with the plaintiff to compel him io to do. In order therefore to get bail to the action, the plaintiff, immediately as he discovers that the cause is removed, should take out a rule, or order, from the chambers of one of the judges of the court, for a procedendo to remand the cause, unless good bail be put in within four days next

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Of the Habeas Corpus ad faciendum et recipiendum, and herein of Bail upon such Writ.

after notice of the rule (if in term) or within fix days next after notice of the rule, fif in vacation] and then serve a copy of such rule or order on the desendant, or his attorney; and unless bail be put in accoidingly, a precedendo may be had.

An action was brought in the sheriff of London's court against two partners, one brought an habeas corpus, and put in bail for himself only. And a procedendo being moved for, it was granted : for otherwise the plaintiff would be disabled to go on in either court. Fry v. Carey, Stra. 527.

Habeas corpus to remove a cause out of an inferior court; and on search plaintiff's attorney finds bail; but the habeas torpus not being returned and filed, the bail signified nothing, and therefore he carried the cause back by procedendo, of which desendant complained to the court; but it was ruled, that the' desendant cannot put in bail till the habeas corpus be returned. Mafias v. Bruges, Mich. 20 Car. 2.

If common bail only is necessary, the attorney for the desendant fills up a common bail-'piece to the habeas corpus and return, and files the same at the judge's chambers on the return of the rule, and gives notice of having filed the same to the plaintiff's attorney.

If special bail is required, the desendant upon service of the rule for bail engrosses a bail-piece, and annexes the same to the habeas corpus and return; and then takes the bail to the judge's clerk, who will take their acknowledgment, to whom is paid in term 6 s. 6d.-in vacation 7 s. td. and then notice thereof must be given to the plaintiff's attorney.

In B. R. if bail be taken in the absence of the plaintiff, or his attorney, the fame is taken de bene ejj'e; and if on due notice in writing of the names and places of abode of such bail, the time when put in, and before whom, no exception thereto be taken by the plaintiff in twenty-eight days after the putting them in, the bail-piece shall then be fiied within four days next aster the end of the twenty-eight days. Mich. 16 Car. 2.

In C. B. if bail be taken de bene effe, and on notice being given of the names and places of abode of the bail, the time when put in, and before whom, no exception thereto be taken in twenty days, the bail-piece shall be filed within four days next after the expiration of the twenty days. Hil. 13 & 1^ Car, 2.


Of the Habeas Corpus ad faciendum et recipiendum, and herein of Bail upon such Writ.

And unless the bail, in case of no exception within time, be not filed within the fcur days, a procedendo may be granted upon a certificate that the bail is not filed. Same rules.

If the plaintiff diflikes the bail put in, he serves the desendant's attorney with another rule or order for a procedendo, unlefs better bail be put in within four days after service thereof, whether it be in term or vacation. In term this rule costs I s. in vacation is.

If this rule is served in vacation time, in Fi. R. the practice is, for the desendant's attorney to give notice only within the rule, that the bail will justify on the first day of the ensuing term. Au. Prac. B. R.

But on service of such rule in vacation time in C. B. it is usual to justify within the four days before a judge at his chambers, for which 2 s. is paid; and on the fiilr. day of the term justify in court. Alt. Pract. C. B. 283.

The practice is exactly the same as to notices of bail, exception thereto, and justifying bail on habeas corpus, as in other cases, for which reser to the first vol.

When bail is taken of a prisoner in custody, the judge's clerk in C. B. is to deliver the bail to the prothonotary to be filed, if assented to, and for that purpose the frothonjtary's sees are to be deposited; but the prisoner is not to be discharged until the bail be assented to, or the plaintiff overruled in open court to accept the lame upon examination. Mich. 1654. Hit. 13 y 14 Car. 7.

If the desendant is an actual prisoner in an inserior court, and brings an habeas corpus to remove the adiion into a superior court, the habeas corpus will not discharge him cut of custody t\\\ bail is put in above and persected; therefore it is. the better way, to gain the dessendant his liberty, to put in bail below, and the*n remove the cause into the superior court if he would have it there determined.

If a cause is removed by habeas corhus out of the Marjhalsea, or other inserior court [London excepted] and the bail below offer to be bail above, the plaintiff cannot except to them, but is compellable to take them, because he might but did not except to them below. But it is otherwise in a cause from Lonnon, for the sufficiency of the bail there i» at the peril of the clerk, and he is refponsible to the plaintiff, so that the plaintiff has .not' the liberty of excepting against them, and the cleric is not leJ'ponsibic if they be de

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Of the Habeas Corpus ad faciendum et recipient dum, and herein of Bail upon such Writ.

ficient in the court above, though he was in London. Salk. 97.

A cause was removed by habeas corpus, in vacation time, and the bail put in on the removal ought to have justified on the first day of the ensuing term : [a rule having been served on the desendant for a procedendo, unless better bail] and the bail not having offered themselves the first day of the. term, a procedendo was sued out to remand the cause. On the second day of the term the bail came and offered to justify, but were then too late; however, a rule was obtained to shew cause, why the procedendo should not be set aside: But on shewing cause the rule was discharged, for it was said, that should this rule be made absolute, it would operate as a second habeas corpus, which can never be granted after a cause is once remanded by a procedendo. Anon.- B. R. 1778. The counsel offered to pay costs of the procedendo, but nevertheless the court discharged the rule.

May 10th 1742, an habeas corpus, returnable immediate, was lodged at the palace-court to remove a plaint into C. B. and nothing surther Was done in it till 20th of Nov. when the plaintiff' served the desendant with a rule to put in bail. Desendant insisted, that the plaintiff should have served such rule within two terms after the hab. corp. brought, and was now too late. But the court held, that if the desendant had put in bail upon the hab. corp. without staying to be forwarded by a rule for bail; and the plaintiff* had not declared within two terms after bail put in, the cause would then have been out of court; but the rule for bail is not limited to any particular time : accordingly the rule to shew cause why proceedings should not be stayed, was discharged, Barnes 90.

If one be removed into B. R. by habeas corpus, and puts in bail, the bail are liable to all other actions, as well as that for which they become bail, at the suit of the same plaintiff mentioned in the return of the habeas corpus, wherein he shall declare against the said defendant within t'JUt terms next after: but see the next case.

The desendant was arrested by process out of an inserior court, in a plea of trespass on the cafe; bail was given, t|je plaintiff declared, and the cause was removed by habeas corpus; and then the plaintiff delivered two declarations, one for words, the other upon an afj'umpstt. Per Hale. If a plain

Os the Habeas Corpus ad faciendum et recipient dum, and herein of Bail upon such Writ.

tiff has declared before the habeas corpus delivered, the bail shall be special only as to that action; and shall be common to the other: but if no declaration before habeas corpus, then the bail put in upon the habeas corpus shall be special bail to all actions of the plaintiff against the desendant of that term; and the plaintiff cannot declare before the habeas corpus allowed. Serb v. Newton, Hil. 25, 26 Car, 2.


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