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never re-enacted, has been virtually adopted, in this state, as part of the common law, modified, however, in some degree, as to the mode of taking and the effect of bail, by our own statutes.'

SECT. III. PROCESS OF BAIL.

1. In England. The practice in this state, in taking bail, is different from that in England. There, upon an arrest, the defendant, in the first place, gives bail to the sheriff, by bond, conditioned simply, that he shall appear according to the exigency of the writ, upon its return day, or within four days afterwards. This is called bail below. He then appears accordingly, by putting in bail to the action, which must be done by way of recognizance, before the court or some judge, or a commissioner, conditioned, that the principal shall pay the debt, or surrender his body to be taken in execution, or that the debt shall be paid by the bail. This latter process of bail by recognizance is entirely distinct, though the persons becoming sureties may be the same, from that at first given to the sheriff by bond, and is termed, bail to the action, or bail above. If the plaintiff be dissatisfied with the bail above thus offered, he may compel them to justify, that is, to shew that they have sufficient within the county, to respond the judgment: - if they do this, and are accepted, then, as also, when they are at

selves, and by the name of their office, and upon conditions written, that the prisoner named therein, shall appear at the day and place required in the said process: and if any sheriff or other officer, take any obligation in other form, by color of their offices, it shall be void.”

1 Sparhawk v. Bartlett, 2 Mass. Rep. 188, 194. Stat. 1784. ch. 10.

once admitted by the plaintiff, without being required to justify, the defendant is said to have put in and per

fected bail above.1

In the English practice, therefore, there are two processes of bail, -the first, or the bail below, given by bond to the sheriff, simply as security, that the defendant shall appear: the second or the bail above, put in after the return day of the writ, by recognizance before the court, and conditioned that the defendant shall abide the judgment and not avoid, and the putting in of which, constitutes the appearance, and is thereby a compliance with the condition of the first bond.

And the remedies of the plaintiff, are conformed to this practice of giving bail, in England. If the de-, fendant, after giving bail below, do not appear, by putting in and perfecting bail above, the plaintiff may either take an assignment of the first bail bond, from the sheriff, which assignment the sheriff is bound to make, and for refusing which, he is liable to an action upon the case, and may maintain an action of debt thereupon, against the sheriff's bail, in his own name;, by doing which, however, he discharges the sheriff, provided the bond be valid :-or if he be dissatisfied with the sheriff's bail, he may proceed against the sheriff himself, by calling upon him to return the writ, and afterwards, to bring in the body of the defendant.

3

11 Arch. Pract. 81, 101.

21 Arch. Pract. 93.

3 Ibid. Mendez v. Bridges, 5 Taunt. Rep. 325.

4 1 Arch. Pract. 94.

* Ibid. 88, 94. Etherick v. Cowper, 1 Salk. 99. 3 Salk. 57.

Grosvenor v. Soame,

And if the sheriff do not then cause sufficient bail to be put in and perfected above, he will himself be responsible to the plaintiff, for the whole amount of the debt.' But he will have his remedy over against the bail he took, upon their bond.2

If, however, the defendant do appear, and put in and perfect bail above by recognizance, the recognizance becomes a matter of record, and the bail below and the sheriff are entirely discharged: and the duties and liabilities of the bail above, thus taken, are similar to those of bail in this state, for it has been decided, that nothing is a breach of the bail bond, taken in this state, which is not also a breach of the condition of the recognizance of bail in England.

2. In Massachusetts. In the practice in this state, there is but one bail bond taken, and that, either by the officer who serves the writ, at some time after the arrest, and before commitment, or after commitment, by the gaoler. But the bail thus taken, answers all the purposes, both of the bail below, and the bail above, in England.

It resembles the bail below, -in being given by bond, - to the sheriff—and before the return day of the writ; in the condition, being for the defendant's appearance on that day, to answer the suit, — and in the fact, that the bond taken, does not become a matter of record. It resembles both bail above and bail below, in the number of sureties required, they being alike in this particular. And it resembles bail above, in being also conditioned, that the defendant shall abide the judg

1 1 Arch. Pract. 87, 101.

2 Ibid.

Ibid. Champion v. Noyes, 2 Mass. Rep. 481.

ment and not avoid, and in the circumstance, that the sureties are not liable, until judgment has been obtained against the defendant, and "non est" been returned on the execution against him. As to the sheriff's liability, he, as in taking bail below in England, is liable for taking insufficient bail, but not at the same time, or in the same manner. In our practice, like the sureties, he is not liable, until after a return of "non est," against the defendant, and not then, or at all, unless he has failed in some respect, to comply with the law, in taking the bail bond.

A bail bond here, therefore, is like that of bail below,

1. In the kind of instrument taken.

2. In the time when it must be given.

3. In the person to whom it must be given.

4. In the disposition of the bond.

It is like, or unites both the bond of bail below, and the recognizance of bail above,

1. In the number of sureties required.

2. In the conditions.

It is like the recognizance of bail above, 1. In the time of the sureties' liability.

2. In the amount of their liability.

The amount of the sheriff's liability here, is the same as in taking bail below, but the time and manner of enforcing that liability, are unlike the English practice.

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The process of taking bail, therefore, in the practice of this state, is this; At any time after an arrest, and before the return day of the writ, the officer or gaoler, if the defendant elect, and take the proper steps, accepts a bail bond, executed according to law, and conditioned, that the defendant shall appear to answer

the suit, and shall abide the judgment and not avoid.1 This bond, the officer may, and generally does retain, in his own possession, until it is called for. The plaintiff then pursues his original action to judgment, whether the defendant appear or not, and takes out his execution. When this execution is returned "non est," and usually not before, the plaintiff calls upon the officer, for the bail bond that was taken. The officer delivers this bond to the plaintiff, who, if the officer have done his duty faithfully in taking bail, has no resource but to the sureties in the bail bond, by action of debt or scire facias. But if the officer have not done his duty, the plaintiff may resort to him also, by action on the case.

SECT. IV. PROCEEDINGS AND REQUISITES IN TAKING BAIL IN MASSACHUSETTS.

When the officer has arrested the defendant, he can at once commit him to gaol, and leave him, to give bail to the gaoler, who is also a deputy of the sheriff, after commitment, if he intend giving bail; - for as the officer, after he has arrested, must, at his peril, keep the defendant, he is not obliged to incur the risk of an escape, or a rescue, by waiting for, or going with, the defendant, to obtain the requisite sureties. For the same reason, even if the requisite sureties are at hand, the officer is not obliged to wait until the bond is filled up and executed, but may commit the defendant, and leave him to give them as bail, to the gaoler, afterwards. But if the defendant, as soon as he is

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