Adding and putting in fresh Bail. orally, the acknowledgment of the bail, in the form in substance which our statute prescribes for the recognizance of special bail, and enters only in his bail book a memorandum, thus: In the Common Pleas, Middlesex, to wit: Easter Term, &c. Capias against C. D., late of, at the suit of A. B., for £, upon promises returnable on Bail, Oath for £50. Each of whom is bound in £100. A. A., Att'y for Def't. Taken and acknowledged, conditionally, at my chambers, in Sergant's Inn, Chancery lane, this day of before me, And under the English Practice, if bail be added, the following words, "Added, R. S., of corn merchant," is written on the back of the bail piece, or in the officer's bail book.58 The safest practice to adopt under our statute, when bail are excepted to, and the defendant intends either to add bail, or to give fresh bail, is to enter a new recognizance and bail piece. NOTICE THAT FRESH BAIL WILL BE GIVEN, Or bail added, &c. next, at - between the hours of county, [&c.,] be put in as new Sir: Please to take notice, that E. F., and G. H., residents of will, on bail, for the defendant in this cause, in the place of the bail excepted to, by you; or say, if they are merely added to the other bail: add themselves to the bail already put in for the defendant in this cause,] and that they will -at the same time and place justify themselves [before the clerk of the said court, or say, in open court, as the case may be.] To J. S., Esq., Att'y for the Pl’ff. [Date.] Yours, &c., The form of the affidavit of the service of the above notice,59 and also the affidavit of justification, the order of allowance, &c., can be readily made out from forms already given.60 (58) Archb. Coll, 51. (59) See ante, p. 162. (60) See ante, p. 173. Recognizance of fresh or added Bail-Common Bail. RECOGNIZANCE OF SPECIAL BAIL, WHEN BAIL Is added, or FRESH BAIL TAKEN. A B VS. CD The State of Ohio, In Debt [or Case, or other action, as the case may be.] county, to wit: The plaintiff having excepted to the bail heretofore taken herein, be it remembered, that on the in the year of our Lord, one thous day of and eight hundred and, E. F., G. H., and L. M., [naming such of the former bail as you intend to retain, and the bail that are added,] of the county of [Sc. following the form ante p. 169, to the end.] The bail piece may be in the same form as herein before given,61 except add, at the end: "The bail piece herein before given, on the superseded." day of, being The court, on motion, will order an endorsement to be made on the first bail piece, that the bail are fully exonerated of their recognizance; but this is unnecessary, as they are of course exonerated,62 SEC. XVI. COMMON BAIL. Common bail is in the same form as special bail, but differs from it in this, that the bail are merely fictitious, as John Doe and Richard Roe, and of course, have none of the incidents of special bail. It is only allowed to the defendant where he has been discharged from arrest, without bail, after the return day of the writ, as herein before mentioned,63 and is necessary, in such case, to perfect the appearance of the defendant. (61) See ante, p. 170. (62) 11 Ohio Rep. 92; 9 Pet. 329. (63) Ante, p. 160. CHAPTER X. WHEN THE DECLARATION TO BE FILED, AND SERVICE OF COPY. 1. When suit is commenced by summons. Before declaring, and at the appearance term, see that there is no defect or irregularity in the process or its return, and if there be, move the court for leave to amend.1 If the summons is returned, personally served by copy on the defendant, or served by copy left at the usual place of residence of the defendant, he is thereby considered in court, and may be declared against accordingly.3 The The plaintiff cannot file his declaration in any instance, or under any circumstances, until the writ is actually returned to the clerk's office; nor can he declare until one or more of the defendants have been served with the summons in the manner above mentioned, unless indeed the defendant actually enter his appearance to the suit, or has been brought in by proclamation. The time allowed after the return term of the summons to file the declaration, is prescribed by the rules of each circuit. The usual consequence of not declaring in time is a judgment of non pros. or nonsuit. 2. When suit is commenced by a capias. In general, the plaintiff is not bound, nor is it usual to declare, until the defendant's appearance is effected. This appearance is effected either by putting in and perfecting special bail, or filing common bail, or being in the custody of the sheriff. (1) See post, AMENDMENT. (2) Stat. 649, §12. (3) Stat. 650, $14. Filing de bene esse-Service of copy. In general, the time limited for the appearance of the defendant is the time limited for putting in special bail, which we have already seen5 must be filed on the return day of the capias, or on the succeeding day. Before the return, by which is understood, not merely the return day, but the actual return of the writ into the clerk's office,6 the plaintiff cannot declare. He may, however, do so at any time after the return of the writ, either before or after appearance. Upon or after the return of the writ, and before the time limited for the defendant's appearance has expired, the plaintiff may file his declaration de bene esse, that is, conditionally, and which becomes absolute upon the defendant's appearing. For the purpose of declaring de bene esse, make out your declaration in the usual form and indorse upon it, "Filed de bene esse," otherwise the filing will be considered absolute, or in chief, whichwill waive the right to bail, or to justification, if the bail have been excepted to.7 If the declaration is filed de bene esse, and bail be not put in and perfected, the plaintiff must then suspend his proceedings on the declaration, and proceed against the sheriff, or on the bail bond, as before directed. Declaring de bene esse is very unusual in our practice, as it must be done between the return of the writ and the time limited for the defendant's appearance, and if not then done the plaintiff cannot file a declaration at all, until the defendant has appeared, either by filing special bail, appearing by consent, filing common bail, or being in custody.8 The plaintiff, therefore, should proceed against the sheriff, if the defendant is not in custody, or against the bail to the sheriff, in order to compel an appearance, before declaring. After the return of the writ, and after bail is put in and justified, or an appearance entered, or the defendant in custody, or common bail filed, as may be requisite, the plaintiff must declare absolutely. After appearance, the plaintiff must file his declaration within the time limited by the rules of court, or he will, in general, be nonsuited. SEC. II. SERVICE OF COPY OF DECLARATION. If the defendant is in custody, the plaintiff must furnish him with a copy of the declaration; and, so far as regards the time allowed the defendant to plead thereto, the declaration will be considered as filed at the time such copy is furnished. If a declaration is filed against a defendant in custody, and a copy not served, the declaration will be treated as a nullity. In such case an affidavit of service, annexed to a copy of the declaration, should be filed in the cause, 9 (5) See ante, p. 167-8. (6) 3 Caines, 96 (7) Johns. 185; 9 Johns. 72; 7 Ohio Rep. (Part 2) 210. (8) Arch. Pr. 106. (9) Stat. 656, §48. Not in general necessary-How copy obtained. and if judgment is taken by default, an entry on the journal should be made before judgment, in substance thus: "it appearing to the satisfaction of the court that a copy of the declaration filed herein was duly served on the defendant, according to the practice and rules of this court, and the statute in such case made and provided, to wit, on" &c. Requiring a copy of a declaration to be served on the defendant if in custody, is an exception to the general rule; for, in all other cases, no copy of a declaration need be served on the defendant, or notice of the filing thereof. The plaintiff simply deposits his declaration in the hands of the clerk of the court or his deputy, at the clerk's office, and the clerk or his deputy indorses upon it the day when filed. The defendant is bound at his peril to take notice of the fact that the declaration is filed, in like manner, for all practical purposes, as if a copy were served upon him.11 Under the rules of the court, each party may obtain a copy from the clerk of the court, of the pleadings of his adversary, the expense of which is taxed in the bill of costs.12 (11) Stat. 670, §95; (12) See ante, p. 8, Rule 15. |