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fault, then without costs.19 In the king's bench, common bail cannot be filed for an infant, under the statute, though he be sued jointly with others.2

20

of this pro

The plaintiff, having declared de bene esse, on entering a Advantage common appearance for the defendant at the expiration of the ceeding. forty days, may, if the defendant do not plead, forthwith enter his default, and at the next term can perfect his judgment. The delay attending a suit on the bail bond, or ruling the sheriff, is thus avoided; and judgment may be obtained at the term succeeding that in which the writ is returnable: hence the advantage, where there is no doubt of the defendant's solvency of adopting this course.

Notice of retainer.] Whenever the defendant retains an attorney to defend the suit, his appearance, in whatever manner it may be, ought to be accompanied or preceded by notice from his attorney to the plaintiff's attorney of his being retained to defend the suit; otherwise the plaintiff may proceed as if no attorney had been employed.21 But notice of retainer is Not on apnot an appearance, or equivalent to an appearance.22 Notice of bail is sufficient notice of retainer,23 and so indeed is any notice in the course of the suit, signed by the attorney for the defendant as such.24

pearance.

tice is recei

ved from two

attornies.

If the plaintiff's attorney receive notice of a retainer from Where notwo attornies for the defendant, he must inform the second attorney of the first notice.25 A notice of appearance by an attorney, as agent or otherwise than as attorney, is wholly inoperative.26

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SECTION IL

Why so termed.

OF SPECIAL BAIL.

Special bail are so termed, in contradistinction to common bail: they are likewise called bail to the action, in distinction to bail to the sheriff; and for the same reason bail above, the bail to sheriff being termed bail below.

In some cases the courts have exercised a power of dispensing with bail altogether, and of accepting from the defendant a deposit of money to a competent amount in lieu thereof.27

Who may put in special bail.] Where the defendant has given bail to the sheriff, he must, unless he has been discharged from bail under a judge's order, or surrendered himself in discharge of his bail, appear within the time required by the condition of the bond by putting in special bail. Special bail may also be put in by the sheriff or his bail for their own indemity, 28 or by an attorney in pursuance of his undertaking." And where an attorney has, from peculiar circumstances, been induced to authorise the sheriff to discharge a prisoner on bail, who afterwards turns out insolvent, the court will, if no opposition be made, and the attorney's conduct appear bona fide, allow him to put in special bail for the purpose of obtaining a surrender of the defendant's body to save himself from liability.101

8 East's Rep. 369. 1 Taunt. St. P. 3. Ch. 6. T. 1. s. 16. Vol. 425. 2. p. 349. & see post.

28 Str. 876. 7 Taunt. 472. R.

29 1 Arch. Pract. 103.
101 1 Caines' Rep. 499.

When bail must be put in.] Bail must be put in and notice given within twenty days from the day on which the process was returnable.30 In calculating these twenty days, should Sundays the last day fall on Sunday, he has the whole of the next puted. Monday; but intermediate Sundays are included in the computation of time.31

Bail may be put in before the return of the writ,s2 and even before the arrest; and if no process has been issued, filing special bail is a good commencement of the suit, and will authorise the plaintiff to proceed in the action; or if the process be irregular or void, it will cure all defects, and this, though the defendant were at the time ignorant of the objection.34

now com.

time.

If the defendant wish an extension of the time to put in bail, Extension of he may generally obtain a judge's order to that effect, on consenting that the plaintiff shall be put in the same state as if bail had been put in, in due time.35 Where the defendant is Defendant in in custody, bail may be put in for the purpose of liberating him at any time pending the action, and even after final judgment, and before he is charged in execution.S

custody.

Who may become special bail.] The bail should be two Real persons, real and substantial persons; and the court may punish parties to suits by fine or imprisonment, or both, for putting in fictitious bail. If, however, one of the bail be a fictitious person, as John Doe, it is valid, unless excepted to;38 and it is usual to give one real and one fictitious person as bail. But the plaintiff is entitled to two persons; and may except to the

30 Rule 13.

35 1 Archb. Pract. 103. Barnes.

31 Str. 782. 914. 1 Archbold, 111. 103.

36 1 Tidd. Pract. 271. and Hill

328 Term. Rep. 456. Barnes 81. vs. Stanton, there cited.

2 Bing. 271.

35 Cowen. Rep. 15.

347 Cowen. Rep. 366. 5 Cowen.

Rep. 15. 1 Cowen. Rep. 209.

37 R. St. P. 3. Ch. 8. T. 13. 6. 1. Vol. 2. p. 534.

49.

368 Johns. Rep. 358. Coleman

Household

ers.

Who may justify as

ers.

bail on that ground. Where the debt is large, the court will allow three or a greater number of persons to become bail in different sums. 39

The general qualifications of bail are that they be housekeepers or freeholders, and respectively worth double the amount for which the defendant is held to bail after payment of all their debts;101 so that each bail must justify for double the amount specified in the ac etiam; or if the defendant be held to bail on a judge's order, for double the amount specified in the order.40

But where the debt is large, so that the rule may operate opressively, the bail will be permitted to justify in a reasonable sum beyond the amount of the plaintiff's demand. Where the debt sworn to, on an order to show cause of action, was $30,000, and the order to hold to bail $45,000, making in the aggregate, each of the bail being required to justify to that amount, $90,000; the court modified the order, so that the bail were required to justify by two or any greater number of persons, to the amount of forty-five thousand dollars in the aggregate.41 In the court of king's bench, if the sum sworn to exceed one thousand pounds, each of the bail will be allowed to justify for one thousand pounds beyond the sum so sworn to; so that if the debt be two thousand pounds, each of the bail must justify for three thousand.42

If the bail are housekeepers, the rent of their houses is imhousekeep- material,43 and a person has been allowed to justify as a housekeeper, although he paid no rent.44 A person cannot justify as a housekeeper in respect of a house which he has taken, if prevented from obtaining possession by a death in the family of the former tenant;45 or who has ceased to be a housekeeper

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since he agreed to become bail.46 So the occupier of a tap connected with a tavern, the license being taken out in the name of the tavern-keeper;47 and in another case, the occupier under a lease of every room in a house except one, which was reserved for his landlord, who paid the taxes,48 were not allowed to justify as housekeepers. And a person was rejected as bail who had rented a house and underlet the same to another, who paid the latter and let the first floor to the bail; but the landlord refusing to accept the under tenant, the rent for the whole house was paid by the latter to the bail, who paid it over to the landlord.49 In the common pleas in England the court allowed a person to justify as bail in respect of a house kept by him and his partners, who carried on business therein, where the rent and taxes were paid by them jointly, and his partner resided in the house, although he lodged himself at a considerable distance therefrom.50 Where a bail has ceased to be a housekeeper at the time he comes to justify, time will be allowed to add and justify another in his stead.51 But where notice had been given of bail, one of whom was notoriously not a housekeeper, and had refused to become bail on that ground, after he had agreed to do so, time was refused to add and justify another.52

Time al

lowed.

disqualified.

An attorney of this or any other court cannot be bail in Attornies any suit depending in this court.101 This rule, which was calculated for the benefit of attornies, and intended to protect them against the importunities of their clients, has in the English courts been extended to their clerks.53 But an attorney or

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