zances may be taken before a commissioner, and they may justify by affidavit; see 4 W. & M. c. 4, s. 2; or if one of the bail reside within the distance, and the other beyond it, the recognizance of the one must be taken in town, and he must justify in person, the recognizance of the other may be taken before a commissioner, and he may justify by affidavit. Mandorf's bail, 2 Chit. 90. This last case, however, seldom occurs in practice. Nor is it necessary that the recognizance should be taken before a commissioner in that county where the defendant has been arrested: if the arrest for instance be made in Middlesex, the bail may be put in before a commissioner in Denbighshire, Moore v. Kenrick, 3 Bing. 603, or elsewhere.

When and how put in.] Bail, we have seen (ante, p. 176) must be put in, on or before the eighth day after the arrest, the day of the arrest being reckoned inclusive. And as country bail is not deemed to be put in, until not only the recognizance is taken, but the bail piece transmitted and filed, and notice given, Grant v. Gibbs, 3 Dowl. 409, 1 Hodg. 56, care must be taken that all this be done within the time here mentioned; otherwise the plaintiff may proceed upon the bail bond or against the sheriff. Grant v. Gibbs, supra. Day v. Greenway, 5 Dowl. 243.

Get a blank form of a bail piece, which may be had at any law stationer's, or you may have some sent to you by your agent; the forms vary in the different courts. Then write out an affidavit of justification upon plain paper, as directed infra, which may be either joint by both of the bail, or each may make a separate affidavit. Anon. 1 Dowl. 115. Take the bail piece and affidavit to a commissioner of the court for taking bails and let the bail accompany you. The commissioner will then take their recognizance, and the bail piece will be signed by them and by the commissioner; the bail also may be sworn before him to their affidavit of justification. Next write out an affidavit of the due acknowledgment of the recognizance; see the form, in the Appendix; and let it be sworn before a commissioner of the court for taking affidavits, (not being the defendant's attorney or his clerk, see R. G. H. 2 W. 4, s. 6,) by the attorney or person who accompanied the bail, when their recognizance was taken. Annex these two affidavits to the bail piece, and transmit them to your agent within such time, that he may have an opportunity to file the bail piece, and give notice of the bail, on or before the eighth day from the arrest, the day of the arrest being reckoned inclusive, as already mentioned, supra.

Affidavit of justification.] If you are well satisfied as to the responsibility of the bail, and wish to proceed under R. G. T. 1 W. 4, s. 3, (ante, p. 181,) so as to obtain the costs of justification, in case the plaintiff should except to them, let your

affidavits of justification be in the form mentioned, ante, p. 181. If given in that form, great care must be taken that it be correct; for if it be not a good affidavit within the rule, the bail will be rejected, even although it would have been sufficient as an affidavit of justification in ordinary cases, independently of the rule. Penson's bail, 4 Dowl. 627, 1 Har. & W. 663. Willer's Bail, 6 Dowl. 312. Or the affidavit may be in the old form. In both cases, however, the "affidavits of justification shall be deemed insufficient, unless they state that each person justifying, is worth the amount required by the practice of the courts, over and above what will pay his just debts, and over and above every other sum for which he is then bail;" R. G. H. 2 W. 4, s. 19. See Darling v. Hutchinson, 2 Tyr. 491. Henshaw v. Woolrich, 1 Cromp. & J. 150. Anon. 1 Dowl. 115. Hunt's bail, 1 Har. & W. 520, 4 Dowl. 272; saying that they are "possessed" of such property, is not sufficient; for they may be possessed of it, and not worth it. Hutchinson's bail, 2 Cromp. & J. 487. Rogers v. Jones, 1 Cr. & M. 323. Simpson's bail, 1 Dowl. 605. Okill's bail, 2 Dowl. 19. Harrison's bail, 2 Dowl. 198. Naylor's bail, 3 Dowl. 452. So, that he is worth the amount above all his just debts," omitting the words "what will pay," has been holden insufficient. Edmunds v. Keate, 6 Dowl. 359. If the affidavit be joint, care must be taken that the names of both the deponents are stated in the jurat; see post, tit. "Affidavit ;" otherwise the bail will not be allowed to justify. See the form of the affidavit, in the Appendix.

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Affidavit of caption.] The affidavit of caption, or taking of the recognizance, must be made by the clerk or person who accompanied the bail to the commissioner, as above mentioned, and must be sworn before a commissioner of the court for taking affidavits (not being the defendant's attorney or his clerk,) the bail-piece being previously annexed to it. See the form of the affidavit, in the Appendix.

Notice of bail.] As soon as the agent receives the bail-piece and affidavits, he takes the bail-piece and affidavit of caption to the judge's chambers, where the bail-piece will be allowed by the judge's clerk, and, in actions in the Queen's Bench, the bail-piece and affidavit are then filed; but in the Common Pleas and Exchequer, the bail-piece (after being thus allowed) and the affidavit, are taken to the master's office, and filed there. The agent then serves notice of bail on the plaintiff's agent. See the forms, in the Appendix.

In ordinary cases, the defendant's agent, at the time he serves notice of bail, usually leaves with the plaintiff's agent a copy of the affidavit of justification; it is not actually necessary that he should do so, but it often has the effect of preventing

an exception to the bail. But if the affidavit of justification be framed upon the rule T. 1 W. 4, s. 3, as already mentioned, ante, p. 181, the original must be filed with the bail-piece, a copy (and described to be so) must be delivered with the notice of bail, and the notice of bail must state where the original is filed. See ante, p. 182.

It seems that it is not necessary to state that the bail-piece is filed; Wigley v. Edwards, 2 Dowl. 282; but is usual to do so.

The rule T. 1 W. 4, s. 2, (ante, p. 179,) which requires notices of bail to describe with particularity not only the present residences of the bail, but their residences during the previous six months also, and whether they are housekeepers or freeholders, has been holden to extend to country bail, as well as to town bail. Anon. 1 Dowl. 259.

Exception and notice.] The practice in this respect is the same, as in town causes. See the practice, and the form of the notice of exception, ante, 183-185.

Justification.] The time for justifying is the same as in town causes. See ante, p. 186. The notice of justification also is the same (see ante, p. 187,) except that it states that the bail "will justify themselves by affidavit in open court," &c. The objections that may be made to the bail, are the same in both cases. And the mode and time of justifying are also the same, except that the justification and opposition in country cases are by affidavit. If the affidavits in opposition state facts, which, if true, would have the effect of rejecting the bail, the court in general will give the defendant a reasonable time to produce affidavits in answer. Where time is thus given, however, the defendant will not be allowed to put in fresh bail, instead of answering the affidavits, Green v. Hartley, 1 Chit. 354, even although his time for putting in bail have not expired, and no attachment have issued against the sheriff. Cockburn v. Ling, 6 Bing. 732.

3. Bail by prisoners.

A prisoner, in custody on mesne process, may be bailed, at any time before he is actually charged in execution. Stanton's bail, 2 Chit. 73.

The practice is now the same as in other cases, both in term and vacation, except that it is not necessary to put in the bail, and then give notice of them, but the defendant may at once give two days' notice of putting in and justifying bail at the same time; and the notice may be the same precisely as the

four days' notice mentioned ante, p. 183, merely adding after the name of the defendant, in the body of the notice, the words "now a prisoner in the prison of the marshal of the Marshalsea," or "in the prison of the Fleet," or "in the custody of the sheriff of -," as the case may be. It is doubted whether this is necessary: some cases holding that it is, Creighton's bail, 1 Cr. & M. 335. Bullen's bail, 3 Dowl. 422. Poole's bail, 2 Mees. & W. 312. and see Frith's bail, 2 Dowl. 229, others that it is not; Pierce's bail, 5 Dowl. 252; but it is better to add it. It is not necessary, however that the notice should be a four days' notice, within rule T. 1 W. 4, s. 1, mentioned ante, p. 182, 183; Davis v. Grey, 2 Tyr. 276; before that rule, prisoners were allowed, by the practice of all the courts, to give two days' notice of putting in and justifying bail at the same time, and the rule does not alter the practice in that respect.

It is not necessary to except to bail put in by a prisoner, see Webb's bail, 1 Dowl. 446, except perhaps when they are put in within the time limited for that purpose by the practice

of the court.

The rule T. 1 W. 4, s. 5, which orders that "the bail of whom notice shall be given, shall not be changed without leave of the court or a judge," (ante, p. 186,) does not extend to the case of a prisoner. Bird's bail, 2 Dowl. 583. Nor will the court prevent him from justifying, until he pays the costs of former oppositions or notices. Steer v. Smith, 1 Chit. 44, 80. But if a prisoner vex or harass his plaintiff by repeated notices of bail, without a bona fide intention of justifying them, the court will oblige him or his attorney to pay the plaintiff the costs to which he may have been put by such proceedings. See Blundell v. Blundell, 5 B. & A. 533, ante, p. 194.

If the bail be rejected, or do not attend, the court will not grant a further time to justify; indeed it would be useless, for the defendant may himself give a fresh two days' notice of the same, or other bail, without the leave of the court. But if one of his bail have justified, in that case it may be necessary to get the leave of the court to justify another. Foy's bail, 2 Dowl. 442.

In the Queen's Bench, the rule of allowance directs the marshal to discharge the prisoner, and there is, therefore, no occasion for a supersedeas. But in that court, (if the defendant be in custody of the sheriff,) or in the court of Common Pleas, or Exchequer, whether he be in custody in the Fleet or of the sheriff, a writ of supersedeas must be sued out, the rule of allowance being the officer's warrant for signing it. See Lock v. Craddock, 7 Taunt. 437. And by R. C. P. H., 1 Vict. s. 2, the rule or order shall direct a supersedeas to issue forthwith.

4. Deposit of money, in lieu of special bail.

When and how paid in.] If the defendant, instead of giving a bail bond to the sheriff, have deposited with him the sum indorsed on the writ, together with £10 to answer costs, as mentioned ante, p. 175, and the sum have been paid into court, the defendant afterwards, instead of putting in and perfecting special bail, may pay into court a further sum of 10l. as an additional security for costs, and allow both sums to remain in court, to abide the event of the suit. 7 & 8 G. 4, c. 71, s. 2. Get counsel's signature to a motion paper for this purpose, draw up the rule, and thereupon pay the money into court, at the master's office, and get a receipt for it in the margin of the rule. Then serve a copy of the rule and receipt upon the plaintiff's attorney. This may be done at any time before the time for justification has expired; Rowe v. Softly, 6 Bing. 634. Stamford v. M'Cann, 2 Cr. M. & R. 632. Straford v. Love, 3 Dowl. 593. 1 Har. & W. 195; but not after the sheriff has paid the money, deposited with him, over to the plaintiff. Hannah v. Willis, 6 Dowl. 417.

Or if the defendant, upon being arrested, either give a bail bond to the sheriff, or remain in custody, he may, instead of putting in and perfecting special bail, pay into court the sum indorsed on the writ, and a further sum of 201. as a security for the costs of the action, there to remain to abide the event of the suit. 7 & 8 G. 4, c. 71, s. 2. See Morgan v. Pedler, 4 Dowl. 645. And where the defendant, having put in special bail, paid money thus into court before the time for justifying them, the court upon application ordered an exoneretur to be entered on the bail piece. Stamford v. M'Cann, 2 Cr. M. & R. 632. The money is paid in, &c. in this case, as in that last mentioned; but it may be made a part of the rule that the bail bond should be delivered up to be cancelled, Smith v. Jordan, 2 Moore & P. 428, or an exoneretur entered, if bail have been put in. Where the money was paid into court by one of the bail, and the plaintiff recovered in the action, the court ordered the money to be paid out to the plaintiff, notwithstanding the defendant had rendered in discharge of his bail. Bull v. Turner, 1 Mees. & W. 47.

The court of King's Bench, in one case, allowed the defendant to convert this into a payment of money into court, in the ordinary sense of the term, by admitting a debt to a certain extent, and moving that the plaintiff might take money out of court to that extent in discharge of the action, and that unless he did so, with costs to be taxed, the sum might be struck out of the declaration. Hubbard v. Wilkinson, 8 B. & C. 496. But the court of Common Pleas, in a subsequent case, refused to allow a part of the sum thus paid in to stand