Court. called on by they are now regularly called on, in due order, by the ting of the filazer. One of the barons sits precisely at [or sometimes Regularly rather earlier] than ten o'clock, to take these and simi- Filazer. lar matters. Where there is no opposition the counsel's brief should be handed in to the filazer, and if any opposition is intended, notice thereof should be given by counsel to him. On the last day of term bail may justify at the rising of the court (c). Last day of Term may justify at rising of the Court. Declaration in chief, or plea waives If the plaintiff declares in chief in the action, or demands a plea before special bail is perfected, it is a waiver demand of of the justification of bail (d); but where time has been justification. given to justify the bail without prejudice to the plaintiff's given withproceedings, it has been considered not to be a waiver dice. thereof (e). Unless time out preju exempted When bail to the sheriff become bail to the action, the Bail may be plaintiff may except to them though he has taken an to, though assignment of the bail bond (ƒ). bail bond assigned. the bail must are worth, Affidavits of justification are insufficient, unless they Amount of state that each person justifying is worth the amount swear they required by the practice of the courts, over and above &c. what will pay his just debts, and over and above every other sum for which he is then bail in any action; and by a decision in this court, if he is not bail in any other court he must so state it in his affidavit *. in, but not Sheriff may Where bail have been put in by the defendant and not If bail put perfected, the sheriff or his officer may put in and justify perfected, bail for his own indemnity, and no order to change the put in bail attorney is in such case necessary †. without changing Attorney. Bail may justify at Bail may justify at the time of their being put in, but time of put in that case four days notice must be given for that ting in. quired to bail, plaintiff must give one day's notice. what time required. purpose before eleven o'clock in the morning; the four days are exclusive of Sunday (g), and are reckoned the first day exclusive, the last inclusive; notice, therefore, If time re- for the 18th day of the month, must be given on the inquire after 14th. In such case, if the plaintiff is desirous of making inquiry into the sufficiency of the bail, he must give one day's notice, before the day appointed for justificaMust state tion, to the defendant, his attorney, or agent (as the case may be); and he must state therein what time is required for the inquiry; such time, however, must not exceed three days in the case of town bail, nor six days in the case of country bail: upon such notice being given (unless the court or a baron shall otherwise order), the time for putting in and justifying the bail are postponed accordingly, and all proceedings are in the mean time stayed (h). If the bail are put in court, the bail piece must be handed over to the filazer, that he may call the names in their turn; and it will save time in court, and inconvenience to the parties, if notice be given to the filazer the evening before, that their names may be put in the list of the day. If notice of justification nied by an affidavit as If the notice of justification be accompanied by an be accompa- affidavit of each of the bail, according to the form and effect of the rule made for that purpose (i), and if the plaintiff afterwards except to such bail, and if such bail be allowed, he must pay the costs of justification; and if such bail are rejected, the defendant must pay the costs thereof, unless the court or a baron order other excepts, and fails, must pay costs, otherwise defendant must pay them. (g) Jenkins v. Mattey. 2 C. & I. 124. (h) R. G. T. T., 1 Will. IV. (i) Ib. wise. This rule appears to have been made with a view to regulate the costs of justifying bail, and to prevent unnecessary expense to parties: it is not, however, compulsory upon the defendant to produce such affidavit. Care, however, should be taken in serving a copy of the affidavit, and filing the original. In a case where the plaintiff was served with notice, and with copy affidavit of bail, which did not purport on the face of it to be a copy, or state where the original was filed, and the plaintiff afterwards excepted to them, it was held that he was not bound, on the allowance of the bail, to pay the costs of their justification (k.) If the property mentioned and described in the affidavit is insufficient, but the bail justify in respect of other property, the plaintiff is entitled to the costs of opposition: and this appears reasonable, since the plaintiff might not have opposed if he had not been misled by the description or value of the property (1). If the affidavit is rejected on account of a deficiency in the form thereof, the court will exercise a discretion as to giving the costs to the plaintiff, though the defendant cannot in such case have his costs (m). The defendant is not in any case entitled to his costs, unless the copies of the affidavits are authenticated, by being annexed to the notice of bail, or refer to it, or unless they are referred to in the notice of bail. When the time for putting in bail has expired, and the notice of bail being does not ex put in is accompanied by the affidavit (n) as above men- affidavit tioned, if the plaintiff does not give one day's notice of justification. (k) West v. Williams. 1 B. & A. 345. (1) Jackson's Bail. Doul. P. C. 172. Blake's Bail. Id. 179 (m) De Rhode's Bail. E. T. C. 162. If Plaintif cept, the sufficient Bail cannot be changed without leave, except for a prisoner, and on terms. Time may be obtained grounds. exception to the bail by whom such affidavit shall have been made, the recognizance of such bail may be taken out of court, without other justification than such affidavit (o). There seems to have been some difference of opinion upon the rule in this respect, and some difficulty in understanding it; the above, however, seems to be the only case in which it would have any operation at all, except in the case of prisoners. The bail put in, or of whom notice of putting in may have been given, cannot be changed without a rule of court, or a baron's order for that purpose (p), except in the case of a prisoner: this will not be granted except upon a sufficient reason being assigned, and then only upon payment of costs, and without prejudice to the plaintiff's proceedings (q): two days notice of justification of added bail must be given. The court, or a baron, will sometimes give time to the on suficient defendant to put in, or add, or justify his bail (r), where from some unforeseen circumstance the bail cannot attend the court, or under such circumstances as will warrant time being given, and where it does not appear that the application is made for delay; or, if there be any unintentional defect in the bail piece, or some technical informality in the affidavits, or notices of justification, the court will also sometimes in such cases give time (s. One bail sometimes In some cases, also, the court will allow one bail to justify, and give time for another to justify; but in all time given to these cases, such terms will be imposed upon the de allowed to justify, and the other. (0) R. G. T. T. 1 Will. IV. (r) 1 Chit. R. 292. Hamilton v. Dainsford. 2 Chit. R. 82. (s) Lofft. 194. fendant as may to the court be considered reasonable; usually it is granted on payment of costs, and without prejudice to the plaintiff's proceedings. It is no objection that added bail are put in before a commissioner in the country, the first bail being in Middlesex (t). at Chambers. It is now frequently the practice, when time is given Justification late in the term to the defendant to justify his bail, for the court to order, that he justify at a baron's chambers (u). lity not a An informality in the notice of bail, such notice not An informabeing an absolute nullity, will not justify the taking an nullity. assignment of the bail bond; advantage of such informality can only be taken at the time the bail attend to justify (w); and when bail are opposed by affidavit of facts as to their insufficiency, &c., it is usual for the Time usually court to give time to answer such affidavits: but the answer court will not in general allow fresh bail to justify in the mean time (x). given to affidavits. Defendant be charged in If a defendant is brought into court to be charged brought up to in execution he cannot justify special bail on the same execution day (y). a cannot justify bail same day. rejected Bail Piece a nullity, recognizance and fresh must be en If bail are rejected the bail piece becomes a nullity, If Bail and if other bail are put in subsequently, a fresh notice of putting in and justification must be given (z), and fresh recognizance entered into: but if bail enter into recognizance and are excepted to, yet never appear to justify, they are still liable to be sued on their recogni- of Bail Piece. (t) Moore, v. Kenrick. 3 Bing, 603. (u) Bell v. Horton, 11 Price, 741. (w) Bell & others, Assignees v. Forster & others. 1 Moore & S. 518. a (x) Ling's Bail. 3 Moore & P. 576. (y) Bircham v. Chambers. 11 Moore, 343. (2) 5 B. & A. 704. 1 D. &. R. 350. tered into. But the first Bail should be struck out |