Who may sue thereon, and where- Discharge of bail-Staying action. The plaintiff cannot take an assignment of the bail bond if the defendant rendered himself at the return of the writ;31 nor after special bail has been put in, unless the bail has been regularly excepted to, and the time for justifying has elapsed;29 nor, if the same bail who signed the bond, became special bail.30 The bail bond cannot be assigned until after it is forfeited ;32 indeed, the terms of the act imply this.33 3. Action on the bail bond. This may be by the plaintiff to the action, after the assignment; or, by the sheriff, after the bail bond is forfeited. It seems by the English practice, that the suit must be brought in the court in which the bail bond was taken; that the same court which adjudicates upon the bond, may have the parties to the original suit before them.34 Under our system this will not probably be required,35 if the party sued on the bond resides in another county. When, however, the action is unnecessarily brought in a court, other than that in which the original suit was commenced, the remedy of the party is by motion, and not by plea.36 4. How bail to the sheriff discharged. On the return of a capias ad respondendum, the defendant may appear in court and render himself in discharge of his appearance bail; and upon such render, the appearance bail will be discharged; and, in such case, if the defendant do not immediately put in and justify special bail, he must be committed, and upon the entry of such committitur, the plaintiff may proceed in the action, and declare against him as in custody,37 If the action and proceedings on the bail bond be not set aside or stayed, the bail can be discharged from it, only by payment of the whole debt and costs in the original action, (and not merely the sum sworn to and costs,) to the extent at least of the bail bond,38 together with the costs of the action against the bail. Where several actions, however, were brought against the bail and principal, without sufficient reason for so doing, and application was made to stay the proceedings, the court, upon staying the proceedings in all the actions, required the defendants to pay the costs of one only.39 But, it seems, such an application should be made in a reasonable time, and, at all events, before verdict.40 5. Setting aside or staying proceedings on the bail bond, as of course. The statute authorises the court to set aside proceedings on the bail bond, if irregular. If, therefore, there be any irregularity in the assignment of the bail bond, or in the proceedings in the action upon it, the court will set aside such (29) 8 Johns. 558; 1 Johns. Cas. 249. (30) 5 Cowen 287. (31) Stat. 656, §44; 6 T. R. 753. (32) 15 Johns. 182; 8 T. R. 4. (33) Stat. 653, §26. (34) 8 T. R. 152; 13 Johns. 424. (35) 10 Ohio Rep. 209; 9 Johns. 80; 1 Hill, N. Y. 604; but see Wright 180. 184, where the En glish rule seems to be recognized. But suppose the bail have removed to another county. (36) 13 Wend. 33; 8 T. R. 152; 3 Wils. 348; 7 Johns. 318; 1 Hill, N. Y., 604. (37) Stat. 656, §44. (38) 1 T. R. 28; 1 Taunt. 23. When set aside or stayed. proceedings, with costs; as, where the action has been commenced before a forfeiture has been incurred,42 or pending a rule to stay proceedings in the original action ;43 or if a defendant be arrested in two different counties, under separate writs, and give a bail bond in each, the bond given on the first arrest will be deemed valid, but the other will be set aside with costs.44 So, if an action on the bail bond be commenced, after bail put in and justified, and the rule of allowance served; or after bail put in, and during the time the defendant has, by law, to justify his bail; or after render, and notice thereof, or the like, the court will set aside the proceedings in such action, for irregularity, with costs.45 So, if the bail to the sheriff become bail above, and the plaintiff except to them, and take an assignment of the bail bond, upon which he commences an action, his proceedings are irregular,46 and will be set aside with costs.47 So, if the plaintiff, without the knowledge of the bail, take a cognovit, he cannot afterwards proceed upon the bail bond; that being an admission by the plaintiff that the defendant had appeared to the action, and was properly in court.48 But where time was given to the defendant, at the instance of one of the bail, the court refused to set aside an attachment against the sheriff, on the application of the bail.49 When a defendant is arrested again, after a non pros., the court will cancel the bail bond in the second action, unless the plaintiff shew that it is not vexatious.50 The plaintiff, by accepting a plea and taking judgment in the original action, waives all benefit from the bail bond; and any step by the plaintiff, beyond the mere filing of a declaration de bene esse, is a discharge of the bail bond. Therefore, filing a declaration in chief is a waiver.51 6. Staying regular proceedings upon terms. The statute authorises the court, even where the proceedings upon the bail bond to the sheriff are regular, to stay them, upon terms, in order that a trial may be had in the original action.52 Therefore, when the plaintiff in the original action has not lost a trial, for the want of special bail being filed in due time, the court or judge may stay the proceedings on the bail bond, upon putting in and perfecting special bail, paying the costs incurred by the assignment and prosecution of the bail bond, receiving a declaration in the original action, pleading issuably, and taking short notice of trial.53 By pleading issuably is not meant, however, merely the general issue; but any plea going to the substance of the action, though informal,54 as a demurrer,55 Appearance of defendant— In what cases special bail entered. or a plea of tender,56 or infancy;57 but not the statute of limitations,58 nor a plea in abatement.5 59 When the plaintiff has lost a trial in the original action, for want of special bail being filed in due time, it is the duty of the court, before staying proceedings on the bail bond, further to require the bail to consent that judgment be entered against them, on the bail bond, for the plaintiff's security; and, in such case, if the defendant fail in the original action, the bail will be liable to immediate execution, and will not be discharged by a render of the principal. Whether the plaintiff has lost a trial or not, will be ascertained by the court; it is not to be inferred from the lapse of a term, or of several terms. The plaintiff must show, by affidavit, all the facts and circumstances necessary to prove the loss of a trial.61 The loss of a trial, in such case, must be without the laches of the plaintiff, or the court will not impose on the bail the judgment against them, as the condition of the stay.62 After the expiration of the term in which the plaintiff might have had judgment, in the original action, if bail had been filed in due time, the proceedings will not be stayed on the bail bond, without the consent of the plaintiff,63 When the defendant neglects putting in special bail in due time, by which the bail bond becomes forfeited, the notice, in case the party means to put in special bail in order to stay proceedings on the bail bond, must be, that he will put in and perfect special bail in open court on such a day, (specifying the day ;) and in that case the plaintiff may oppose the bail in court, without its being a waiver of the bail bond.64 SEC. XIV. WHEN, AND HOW, THE APPEARANCE OF THE DEFENDANT EFFECTED WHEN SUIT IS COMMENCED BY CAPIAS. Appearance is the first act of the defendant in court; and where the suit is commenced by a capias, it is effected, either, 1. by filing special bail; 2. by entering common bail; 3. by the defendant rendering himself on the return of the capias in discharge of the bail to the sheriff, and, upon failing to enter special bail, being committed; 4. when the defendant is brought in by the sheriff upon being ruled so to do, and committed to prison.2 We have already seen how the plaintiff may proceed against such of the defendants as are served with process.3 SEC. XV. SPECIAL BAIL. 1. In what cases to be entered. In all cases in which a defendant may be arrested, and a capias is served, the defendant is required to file special bail, In what cases, by whom, when and how taken. unless he has been discharged upon common bail, or the plaintiff has waived special bail, by filing his declaration in chief, or, by doing some other act, which prevents him from ruling the sheriff to bring in the body, or suing on the bail bond. If the defendant did not give bail to the sheriff, but remains in custody, the plaintiff can declare against him as in custody, and the plaintiff cannot require special bail; and, in such case, ruling the sheriff to bring in the body, would be useless. If, therefore, the defendant has given bail to the sheriff for his appearance, the only means of compelling the filing of special bail, are, to rule the sheriff to bring in the body, or suing on the bail bond; and, in general, the only mode of avoiding a forfeiture of the bail bond to the sheriff, is, either to surrender the defendant on the return of the capias, or entering special bail.5 The non-imprisonment act of March, 19, 1838,6 operated to discharge special bail, upon recognizances entered into before the act took effect, and upon which a breach of the condition happened after the act took effect." 2. By whom put in. Special bail is usually put in by the defendant, or his attorney; or by the sheriff, without the consent of the defendant, to save himself; or by the sureties of the sheriff, for their own indemnity.8 3. When put in. Special bail may be put in before the return of the writ,9 but not before the arrest, except by the consent of the defendant. 10 However, it must be put in on the return day of the capias, or on the succeeding day, and cannot be put in afterwards, except upon terms.11 When the defendant is in custody, special bail may be put in at any time, even after verdict and judgment;12 or for the purpose of making one of the bail a witness,13 and this even at the trial. But bail will not be taken after a ca. sa. has been issued.14 4. How and by whom taken. The recognizance of special bail can be taken in open court, or by one of the judges, or the clerk of the court, in which the suit is pending.15 5. Its form, and form and object of the bail piece; and form of notice that special bail has been put in. The form of the recognizance of special bail is prescribed by statute.15 (4) Dunl, 176; 7 Ohio Rep. (Part 2) 210. (5) Stat. 656, §44. (6) Stat. 646. (7) 11 Ohio Rep. 90. (8) Stat. 653, 29. (9) 8 T. R. 456. (10) 8 T. R. 457. (11) Stat. 652, §25; see ante, p. 166. (12) 18 Eng. C. L. Rep. 253; 1 Tidd, 9 ed. 279. (13) 18 Eng. C. L. Rep. 264. (14) 22 Eng. C. L. Rep. 411. (15) Stat. 654, §33. in the year of our Lord, G. H. and E. F., of the county one thousand eight hundred and of, personally appeared before J. K., [one of the judges of the supreme court of the State of Ohio, or one of the judges of the Court of Common Pleas, in and for the county of or clerk of the Supreme Court of the State of Ohio, or clerk of the Court of Common Pleas, in and for the county of, as the case may be,] and severally acknowledge themselves to owe unto A. B., the sum of ·[double the sum indorsed on the writ,] to be levied on their several goods and chattels, lands, tenements and estates; upon condition that if the defendant, C. D., shall be condemned in this action, at the suit of A. B., the plaintiff, he shall pay the costs and condemnation of the court, or be rendered, or render himself, into the custody of the sheriff of said county, for the same; or, in case of failure, that the said G. H. and E. F., will pay the costs and condemnation for him. Taken and acknowledged the day and year above written, before me, J. K. If the defendant has been arrested by a wrong name, he may, at any time before entering special bail, or before the time expires for pleading in abatement, move the court to discharge him on filing common bail, and the court will order the bail bond to the sheriff, to be delivered up to be cancelled, upon condition that the defendant will not bring any action for false imprisonment. 16 But the defendant may choose to plead the misnomer in abatement; in which case he should put in bail in his right name, stating that he was sued or arrested by the name in the writ: thus, instead of the words "the defendant C. D.,” in the body of the above form, and the words, "C. D.," in the form of the bail piece below, insert these words, "R. D.," (the real name) "who was arrested by the name of C. D."17 For, if a defendant sued by a wrong name, appear and perfect bail in his right name, without thus identifying himself as the person sued by the other name, the plaintiff may either treat the bail as a nullity, and rule the sheriff to bring in the body;18 or declare against the defendant, by the wrong name, and the defendant will be estopped from pleading the misnomer in abatement.19 (16) 4 M. & S. 360; 18 Eng. C. L. Rep. 81; will not be estopped from pleading the misnomer Id. 366; 10 Ohio Rep. 263; ante, p. 160. (17) 4 Cowen 148; Tidd, 9th Lond. ed. 252. (18) 4 Taunt. 818. (19) Willes 461; Tidd, 9th London ed. 448, 449. It is said that the defendant, by entering into a bail bond to the sheriff in the wrong name, in abatement, though it might be in an action on the bail bond. The safer way, however, is for the defendant, when arrested by a wrong name, to enter into the bail bond by his right name, stating, as in the above form, that he was arrested by the name in the writ. Id. ib. |