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not be permitted to avail himself of his own gross negligence or fraudulent contrivance, in order to fix the bail.94 Thus, where the principal was sued in 1800, and made no defence, and at that time was reputed insolvent, and was for a considerable time in jail, and from these facts and the omission of the plaintiff to charge him in execution, the bail supposed that the plaintiff had abandoned all expectation of obtaining any part of his judgment; but eight years afterwards, when the principal had removed into another state, the plaintiff commenced an action on the recognizance : the court under the circumstances allowed the bail to surrender their principal in their discharge, after the expiration of the time allowed ex gratia.

95

Discharge

If the principal obtain his discharge under a bankrupt or under bank Sorrent law. insolvent law at any time before the expiration of the time al

lowed ex gratia, the court will allow an exoneretur to be entered, on motion, on payment of costs, to avoid the unnecessary circuity of a formal surrender, since the principal would be entitled to an immediate discharge.96 But if the defendant in the original suit has had an opportunity to plead the discharge, but neglected to do so, an exoneretur will not be ordered in favour of his bail; but they must surrender in the ordinary way.97 So where the judgment has been revived by a scire faeias, personally served, and a default taken for not pleading the discharge.98 For in these cases the reason of the rule does not apply; there is no circuity to be avoided;

94 4 Johns. Rep. 480. per Kent, 8 Term Rep. 609. 1 Term Rep. Ch. J. et vide 2 Black. Rep. 1317. 604. 95 4 Johns. Rep. 478.

97 6 Cowen. Rep. 596. 1 Cowen. 98 4 Johns. Rep. 409. 1 Caines' Rep. 427. 18 Johns. Rep. 54. 9 Rep. 9. Riddles vs. Mitchell. 1 Johns. Rep. 392. 3 Taunt. 46. Caines' Rep. 11. n. a. 2 Johns. 98 Franklin vs. Thurber, 1 CowCas. 403. 14 East. Rep. 599. 1 en. Rep. 427. In this case the Barn. & Ald. 332. Barnes, 104. court ordered, that the bail should Cowp. 821. 2 New Rep. 180. 190. have thirty days within which to

surrender the principal, the pro

as if the principal himself were to apply to the court, they would not discharge him from execution.99

An insolvent discharge of a neighbouring state, which exempts the person from imprisonment, but leaves the future acquisitions of the debtor liable to execution, relates to the remedy merely, not to the contract, and is of no force whatever in this state; and therefore, in such case, the court will not allow an exoneretur to be entered. 100

Bail may be put in, as we have already seen, before the Bail need not return day, for the purpose of surrendering the defendant.1 surrender. It is not necessary, it seems, for the bail to justify in order to surrender, even after they have been excepted to, or though the sheriff has been ruled to bring in the body; and on an erception to bail, if notice be given of other bail, only one of whom justifies, and the names of the former still remain on the bail piece, the first bail may surrender the principal.” And it is said that in the king's bench, bail who have been rejected, are competent to render the defendant, so long as they remain on the bail piece;' but it is otherwise in the common pleas.

The bail have the right to arrest and take their principal at Power of any time and in any place, for the purpose of surrendering principal, him; they are said to have him in a string which they may

2

ceedings on the part of the plain- Reg. Gen. B. R. See appen-
tiff to be stayed in the mean time, dix. W. Black. Rep. 758. 1179.
and that on making the surrender 1180.5 Term Rep. 368.1 H. Black.
and payment of the costs which Rep. 638. 7 Term Rep. 525. con-
had accrued against the bail, the tra. 7 Term Rep. 292.
proceedings against them should 3 5 Term Rep. 633.
be perpetually stayed.

41 Tidd. Pract. 300. 1 New * 1 Cowen. Rep. 428. 9 Johns. Rep. 138. a. 1 Chit. Rep. 446. a. Rep. 394.

1 Taunt. 163, 4. et vide 1 Chit. 19 2 Cowen. Rep. 626.

Rep. 446. a.
Ante, Vol. 1. p. 399.

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pull whenever they please. Thus, they may take him without the jurisdiction of the court, and in another state ;' they may break open the outer door of his house, and they may take him even upon a Sunday and confive him until the next day, and then surrender him. And they may enter the house of a third person, in which the principal resides, the outer door being open, in order to seek for him, for the purpose of rendering him.' Nor is the right to take their principal, a mere personal power or authority to be exercised by the bail only, but it may be deputed to another;"1 and in case of the death of the bail, it seems that his executor,12 or administrator, 13 may

make the surrender. Where prin- Where the principal is already a prisoner, whether on a cri

minal charge, or under civil process, he may be brought up by writ of habeas corpus cum causa, which may be made returnable immediaté ;ll and on his being brought up and surrendered, the court will order an exoneretur to be entered on the bail piece.14

cipal is aiready imprisoned.

The force of a special bail piece is spent by an arrest ona ca. sa., which at the same time discharges the bail from his liability, and deprives him of all power over the body of his principal: and though he afterwards become surety for the jail liberties, yet he has as such, no right to surrender; this creates the relation of principal and surety, not of principal and bail, and the latter relation only will warrant a surrender. 15

6 6 Mod. 231.

11 7 Johns. Rep. 144. 7 7 Johns. Rep. 144.

12 1 Bos. & Pul. 62. * 2 H. Black. Rep. 120. 7 Johns. 13 7 Mass. Rep. 169. Rep. 156, 7.

101 3 Bur. Rep. 1875. 1 Tidd. 97 Johns. Rep. 155. 6 Mod. Rep. Pract. 312. 231.

14 2 Johns. Rep. 482. 10 2 H. Black. Rep. 120.

15 7 Cowen. Rep. 472.

CHAPTER IV.

OF JUDGES' ORDERS, COMMON RULES, AFFIDAVITS, AND NOTICES.

SECTION I.

OF JUDGES' ORDERS.

There are certain powers of the court which may

be exercised by a single judge at chambers, and by other officers, termed supreme court commissioners.

The general powers of supreme court commissioners, with the restrictions thereon, the effect of their orders, the tenure of their offices, and the mode of their appointment, have already been considered. Many of the cases in which it is necessary or advisable to obtain the interposition of a judge, by his order, have been already noticed, in connection with the subjects to which they relate; and the general terms a judge at chambers and a judge's order, have been used, for the sake of brevity, without distinction, between the powers at chambers of a judge of the supreme court, and a supreme court commissioner, as this is separately treated of.?

These orders are either for the opposite party to show cause, Absolute, or or absolute, granting the relief sought; or they are in the al- cause. ternative, as the order for a bill of particulars, giving the party his option either to do what is required or to show cause. Where the order in the first instance is in the alternative, if no

See ante, Vol. 1. 163 to 167.

2 Ibid.

sufficient cause be shown, the judge, upon affidavit of the service of the order, and that it has not been complied with, will grant an absolute order; and so where the order is simply to show cause, if this be not done, the judge will make such further order as the nature of the case may require.

Enumeration of most usual orders.

The most usual orders, are to hold the defendant to bail in an action not bailable ;' to show cause of action, or why the defendant should not be discharged on common bail, or the bail be mitigated ; 4 to furnish a bill of particulars, (or a further bill if the first be insufficient, or to show cause;' to deposit with the clerk, or to deliver sworn copies of papers and documents requisite to enable a party to maintain or defend an action ; to attend the examination of a witness to be examined de bene esse;' that a commission issue to take the examination of witnesses residing out of the state ;8 to enlarge the time to declare, plead, reply, &c., or to prepare a case, bill of exceptions, special verdict, or demurrer to evidence ;10 to allow writs of habeas corpus and certiorari to remove a cause;" to show cause why the defendant should not be discharged on supersedeas, for not being declared against, or charged in execution in due time;12 and to stay proceedings whenever this becomes requisite in the course of the cause.

For particular information with respect to these orders, reference must be had to those parts of the work which treat of the subjects to which they immediately relate. It is the practice for the attorney to draw up the order, and it is signed by the judge.

3

9

11 See post,

Ante, Vol. 1. p. 379.380.

Ante, Vol. 1.

p.

438. * Ib. p. 386 to 388.

10 See Rule 39. 5 See post, chapter 7.

“ Of removal of * Ante, Vol. 1. p. 486 to 489.

causes, &c." Ante, Vol. 1. p. 492.

12 R. St. P. 3. Ch. 6. T. 1. s. 22, 3 R. St. P.3. Ch. 7. T. 3. s. 12. 23. Vol. 2. p. 350. Ib. Ch. 8. T. 17. Vol. 2. p. 393. et vide post, “Of s. 36, 37. Vol. 2. p. 556, 557. and motions for a commission, &c. see ante, Vol. 1.

p.

432. and post.

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