Rule for allowance should be served forthwith. If Plaintiff sues in person and zance (a); and they should therefore apply to the court or a baron to have their names struck out of the bail piece (b). In all cases of justification it is necessary to serve the rule for allowance forthwith; for until the rule be served the bail is not perfected; and such rule must be served, although the plaintiff's attorney excepts to the bail, and is present when they justify (c). If the plaintiff sues in person, and his residence is unknown to the defendant, and he is unable to ascertain known, rule the same, the court will order the affixing of the rule for residence un for allowance may be served at the allowance at the Exchequer Office, as service and notice Exchequer If fraud or malpractice Rule. It may be set aside. of such rule (d). If there be any fraud or malpractice in obtaining a in obtaining rule of allowance, the court will on motion set the same aside; but unless such fraud or malpractice appears to have been committed with the privity of the defendant or his attorney, the court will not interfere to set aside Case where the allowance (e). There is however a case in which the Court of Common Pleas set aside a rule for allowance on the ground of perjury, but it does not appear that any cause was shown against the rule (ƒ). Rule was set aside. If Bail are rejected in If the bail are rejected in one action for insufficiency one action they will not be permitted to justify in another action. cannot justify in another. A Prisoner may obtain SPECIAL BAIL FOR A DEFENDANT IN CUSTODY. If the defendant be in custody, he may, whether in (a) Bramwell & another v. Farmer 2 B. & P. 341. 4 Durnf. & E. 493. & another. 1 Taunt, 427. (d) Ward v. Nethercote. (b) 4 Burr, 2127. 1 Wils. 337. Taunt, 145. Say, 58. I W. Bl. 462. (c) 4 T. R. 493. 2 D. & R. 436 1 B. & C. 285. Holland v. White. (e) 5 Taunt, 776. 7 (f) Burling v. Waters. 4 M. & P. 125. on putting in Deposit. final term or vacation, obtain his discharge, pending the ac- his discharge tion, by putting in and perfecting special bail, on Special Bail the usual notice, or by a deposit in court of the amount or by sworn to in the affidavit to hold to bail, and 207. towards costs (g). Special bail may be given (h), or deposit made even after final judgment, but it must be Even after before the defendant is charged in execution. Upon judgment. obtaining a rule of the allowance of bail, and for a supersedeas to issue, or upon a rule for the payment of the deposit into court with a supersedeas, the defendant may immediately obtain the supersedeas; and upon lodging the same with the gaoler he will forthwith be discharged. If the defendant be in the Fleet the rule If in the for allowance is sufficient for his discharge, but if he be If in King's in the King's Bench, or in a county gaol, there must be a supersedeas. A præcipe for the supercedeas must be lodged in the office with the filazer, and the writ must be signed by the master. Fleet. Bench or County Gaol. notice of Justification If the defendant has given a former notice of jutifi- If former cation, and failed in justifying his bail, he is not per- given mitted to justify his second bail until the costs of the Must pay first opposition be paid: but it is not necessary to obtain an order to charge the attorney (i). Costs. Attorney need not be charged. cognizance The same bail who may have rendered the defendant Fresh Recannot again become special bail without entering into a necessary. fresh recognizance, the first being discharged by the render (k). notice Two days notice of putting in and justifying bail are Two days sufficient, but in the notice and bail piece the defendant justification must be described as a prisoner, otherwise two days are insufficient. No exception is necessary, the defendant No exception (g) 7 & 8 Geo. IV. c. 71. (i) Keys v. Savernier. 1 Ch. 291. necessary. Must justify being bound to justify his bail even though there be no in Court, except in vacation. exception. In term time the bail must justify in court unless a consent by the plaintiff be given to justify at chambers. In the vacation they may justify at chambers. May be rendered in RENDERING IN DISCHARGE OF BAIL. The defendant may be rendered in discharge of his Court or be- bail, either in court or before a baron to the Fleet; or to fore a Baron or to the County Gaol. Rejected Bail to the Fleet, the gaol of the county in which he was arrested (7). And though the bail are rejected in appearing to justify, they may render. may nevertheless render the defendant (m) while their names remain on the bail piece. Form of Notice of render. should be The bail piece is filled up in the usual form, and notice of the defendant's render must forthwith be given to the Exonoretur plaintiff's attorney. An exonoretur may and should entered. thereupon be entered on the bail piece, for until this be Or bail liable. done the bail remain liable though the defendant be in prison (n). If no such exonoretur be entered, and the bail be sued on their recognizance, they must pay the costs of such proceedings, and of the application before an order for an exonoretur can be obtained, or the bail discharged (o). And must pay costs of proceedings against them Notice of Bail merely necessary. If special bail-is put in merely for the purpose of renderto render not ing the defendant, it is not necessary to give notice of bail. The bail to the sheriff have no right to take the prinrender cipal, and render him as special bail may do (p); but special bail may be put in by the defendant for the Bail to the sheriff cannot defendant. pose of rendering him (9). (1) Stat. 2 Geo. IV. & 1 Will. IV. c. 70, s. 21, 2. (m) R. G. H. T., 2 Will. IV. (0) Say, 7. Barnes, 68. pur (p) Rex v. Hughes. 3 Cas. & P. 373. (q) Tidd Pr. 248. the Render of Defendant Gaol. Order necessary. the How obtained. with the Upon rendering the defendant in the country in discharge of his bail a baron's order must be obtained (r). to a County This is granted upon a statement on whose behalf the A Baron's application is made, the state of the proceedings in cause, and for what amount the defendant was held to bail, and by the sheriff of what county he was arrested; all of which facts must be stated in the order. The order must afterwards be lodged with the gaoler of the To be lodged gaol of the county in which the defendant was arrested, Gaoler. and where he must also be rendered; on rendering the Notice of defendant a notice thereof, and a notice of the defendant be given. being actually in custody thereon in writing, signed by the defendant or his bail, or one of them, or of the Signed by attorney, or agent of any or either of them, must be Attorney, &c. delivered to the plaintiff's attorney or agent: and thereupon the bail for the said defendant are exonerated without rated without any exonoretur being entered on the bail piece (s). render must the Bail or Bail exone any exonoretur being entered. be in a And if a defendant be in custody of the gaoler of the If Defendant county gaol of any county in England or Wales, by County Gaol. virtue of any process issued out of any of the superior courts of record, he may be rendered in like manner in He may be discharge of his bail in any action depending in this court: therein in and thereupon the bail are exonerated from liability as And Bail such bail (t). be in may as rendered like manner. thereby exonerated. proper notice must in all Care, however, must be taken to give due notice of Due and render in all cases where a defendant custody cases be in other actions; otherwise the bail bond may be given. signed (u). And if any proceedings are had thereon the or Bail must bail must pay the costs before they can be relieved. And in cases other than those contemplated by the said act of them. (r) 1 Will. IV. c. 70, s. 21. R. G. M. T., 1 Will. IV. (s) R. G. M. T., 1 Will. IV. (t) Ib. (u) Harding v. Hennam. 3 B. & P. 232. pay costs of any proceedings against Exonoretur should be entered. 1 Will. IV. c. 70, s. 21, the bail should take care to have an exonoretur entered upon the bail piece, or the bail will remain liable (w): and can only obtain relief by an application to the court, and on payment of costs. Defendant on being DEPOSIT IN LIEU OF BAIL. The defendant upon being arrested upon mesne process, arrested may instead of giving bail to the sheriff, may deposit with him make deposit instead of giving Bail. And must be paid into Court. When may to Defendant. the sum for which he is arrested, and 107. towards the costs (x) and which must be brought into court forthwith by the sheriff, and paid over by him to the master. defendant may have the same returned to him on perfecting The be returned special bail, or on being rendered, or upon a verdict, or judgment in his favour, by motion to the court upon notice and affidavit thereof. When not. When may be paid over But in a case where the bail was not perfected in due time, and money had been received by the sheriff in lieu of a bail bond, and by him paid into court, and a rule made for the same to be taken out by the plaintiff, the defendant afterwards rendering applied to the court to have the deposit returned to him, and there being no affidavit of merits, the court refused the application (y). In case the bail should not be put in and perfected in to Plaintiff. due time, the plaintiff may move the court on affidavit, for a rule to show cause why the money should not be paid over to him in discharge of debt and costs, and if If Plaintiff the plaintiff intends proceeding for a further sum, he may larger sum. also move at the same time for liberty to enter a common appearance for the defendant. If no cause be shown, the plaintiff is entitled to a rule absolute on affidavit of goes on for a (w) 1 Salk, 78. 8 Mod. 282. (y) Newman v. Hodgson, MS. |