Of the Habeas Corpus ad faciendum et recipiendum, and herein of Bail upon fuch Writ. N all cafes where fpecial bail was required in the court below, if the caufe 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 107. except the defendant is an heir, executor, or adminiftrator. Reg. Hil. 2 Jac. 2. The above is the old rule-but now by the 19 Geo. 3. 2. 70. as no one can be arrested or held to special bail in any inferior court, without an affidavit made and filed that the caufe of action amounts to 10. or upwards; it follows, that where the debt is under 10. and the defendant is not arrested below, there he would not be obliged upon removal to find fpecial bail above. But to defeat the advantage that might be taken of this, by removing the caufe in order to delay the plaintiff, the fame ftatute provides, that no action in an inferior court, not amounting to 10. or upwards, shall be removed by habeas corpus, &c. unlefs the defendant shall enter into a recognizance, with two fureties, in the court below, in double the fum for which the action is brought, for payment of the debt and cofts in cafe judgment fhall pafs against him. An heir, executor, or adminiftrator, although he has put in bail below, fhall not, upon removal, put in bail above to pay the condemnation money; yet he fhall 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 fuggefting a devaftavit, he fhall give bail, for there the action is in the debet et detinet. Vide Salk. 98. and I Lev. 268. 2 Lev. 204. No bail to be tendered, or put in upon an habeas corpus, until the babeas corpus, and caufe for which bail is to be put in, be returned, to the end that it may appear for what cause the defendant is detained, and bail may be taken, and the habeas corpus and bail duly filed. Mich. 1654. Paf 29 Car. 2. Hil. 16 IV. 3. A defendant who had removed a caufe from an inferior court into B. R. or C. B. is not of course obliged to put in Special bail there; but it lies with the plaintiff to compel him lo to do. In order therefore to get bail to the action, the plaintiff, immediately as he difcovers that the caufe 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 caufe, unless good bail be put in within four days next A a 3 after Of the Habeas Corpus ad faciendum et recipiendum, and herein of Bail upon fuch Writ. after notice of the rule (if in term) or within fix days next after notice of the rule, [if in vacation] and then ferve a copy of fuch rule or order on the defendant, or his attorney; and unless bail be put in accordingly, a precedendo may be had. An action was brought in the fheriff 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 otherwife the plaintiff would be disabled to go on in either court, Fry v. Carey, Stra. 527. Habeas corpus to remove a caufe out of an inferior court; and on fearch plaintiff's attorney finds bail; but the habeas corpus not being returned and filed, the bail fignified nothing, and therefore he carried the cause back by procedendo, of which defendant complained to the court; but it was ruled, that the defendant cannot put in bail till the habeas corpus be returned. Mafters v. Bruges, Mich. 20 Car. 2. If common bail only is neceffary, the attorney for the defendant fills up a common bail-piece to the habeas corpus and return, and files the fame at the judge's chambers on the return of the rule, and gives notice of having filed the fame to the plaintiff's attorney. If fpecial bail is required, the defendant upon fervice of the rule for bail engroffes a bail-piece, and annexes the fame 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. 6 d. in vacation 7 s. 6 d. and then notice thereof muft 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 effe; and if on due notice in writing of the names and places of abode of fuch 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 fhall then be filed within four days next after 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 fhall be filed within four days next after the expiration of the twenty days. Hil. 13 & 14 Car, 2. And Of the Habeas Corpus ad faciendum et recipiendum, and herein of Bail upon fuch Writ. And unless the bail, in cafe of no exception within time, be not filed within the four 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 ferves the defendant's attorney with another rule or order for a procedendo, unless better bail be put in within four days after fervice thereof, whether it be in term or vacation. In term this rule cofts I s. in vacation 2 s. If this rule is ferved in vacation time, in B. R. the practice is, for the defendant's attorney to give notice only within the rule, that the bail will juftify on the first day of the enfuing term. Att. Prac. B. R. But on fervice of fuch rule in vacation time in C. B. it is ufual to justify within the four days before a judge at his chambers, for which 2 s. is paid; and on the firit day of the term juftify in court. Att. Pract. C. B. 283. The practice is exactly the fame as to notices of bail, exception thereto, and juftifying bail on habeas corpus, as in other cafes, for which refer to the firft vol. When bail is taken of a prifoner in cuftody, the judge's clerk in C. B. is to deliver the bail to the prothonotary to be filed, if affented to, and for that purpofe the prothonotary's fees are to be depofited; but the prifoner is not to be dif charged until the bail be affented to, or the plaintiff overruled in open court to accept the fame upon examination. Mich. 1654. Hil. 13 14 Car. 2. فوع If the defendant is an actual prifoner in an inferior court, and brings an habeas corpus to remove the action into a fuperior court, the habeas corpus will not discharge him out of cuftody till bail is put in above and perfected; therefore it is the better way, to gain the defendant his liberty, to put in bail below, and then remove the caufe into the fuperior court if he would have it there determined. If a caufe is removed by habeas corpus out of the Marfbalfea, or other inferior 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 night but did not except to them below. But it is otherwile in a caufe from London, for the fufficiency of the ball there is at the peril of the clerk, and he is refponfible to the plaintiff, fo that the plaintiff has not the liberty of excepting against them, and the clerk is not refponsible if they be de A a 4 ficient Of the Habeas Corpus ad faciendum et recipiendum, and herein of Bail upon fuch Writ. ficient in the court above, though he was in London. Salk. 97. A caufe 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 enfuing term: [a rule having been served on the defendant for a procedendo, unless better bail] and the bail not having offered themselves the first day of the term, a procedendo was fued out to remand the cause. On the fecond day of the term the bail came and offered to justify, but were then too late; however, a rule was obtained to fhew caufe, why the procedendo fhould not be fet afide: But on fhewing caufe the rule was difcharged, for it was faid, that fhould this rule be made abfolute, it would operate as a fecond 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 cofts of the procedendo, but nevertheless the court difcharged the rule. May 20th 1742, an habeas corpus, returnable immediatè, was lodged at the palace-court to remove a plaint into C. B. and nothing further was done in it till 20th of Nov. when the plaintiff served the defendant with a rule to put in bail. Defendant infifted, 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 defendant 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 fhew caufe 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 fuit of the fame plaintiff mentioned in the return of the habeas corpus, wherein he fhall declare against the said defendant within twa terms next after but fee the next cafe. The defendant was arrested by procefs out of an inferior court, in a plea of trespass on the cafe; bail was given, the plaintiff declared, and the caufe was removed by habeas corpus; and then the plaintiff delivered two declarations, one for words, the other upon an affumpfit. Per Hale. If a plain Of the Habeas Corpus ad faciendum et recipiendum, and herein of Bail upon fuch 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 fpecial bail to all actions of the plaintiff against the defendant of that term; and the plaintiff cannot declare before the habeas corpus allowed. Serle v. Newton, Hil. 25, 26 Car. 2. O |