circuit court of the United States, to be holden in any district in which the present provision, by law, for taking bail and affidavits in civil causes, (in cases where such affidavits are, by law, admissible) is inadequate, or on account of the extent of such district, inconvenient, to appoint such
hold to bail, because the affidavit is positive; but the necessity to examine the party who makes the affidavit, must be presented on the face of the same. Oliver v. Parish, 2 Wash. C. C. R. 462.
New York. Under the act of Congress of 6th January, 1800, the sheriff of a county is bound to take a bond for the limits, as provided by the state laws, from a prisoner confined on process from the courts of the United States; and false imprisonment would lie on his refusal. United States v. Noah, Paine’s C. C. R. 368.New York. Such a bond has, in all respects, the same incidents, and the like legal effects with a bond taken under the state laws. Ibid.New York. It is assignable: and an assignment discharges the sheriff from a liability for a subsequent escape. Ibid.New York. The United States are expressly named in the act, and bound by it; and an assignment of a bond to them when they are plaintiffs, is valid. Ibid.New York. The Secretary of the Treasury having accepted such an assignment, the court presumed that he was authorized, and held the plaintiffs bound by his acceptance. Ibid.New York. The term “process,” in the act, includes executions, as well as mesne process. Ibid.New York. After a prisoner has been enlarged upon a limit bond, the sheriff can confine him again only on the bail’s becoming insufficient. He cannot accept a surrender of him; certainly not after an assignment of the bond. Ibid.Pennsylvania. The bail to the sheriff entered special bail; on being excepted to, he refused to justify, whereupon he was sued on the bail bond, and he surrendered the principal before the return of the writ. Held, that the surrender was good, and the bail was entitled to relief on the usual terms. Stockton v. Throgmorton, 1 Baldwin’s C. C. R. 148.No justification of bail is necessary, when special bail is entered for the purpose of a surrender. Ibid.Bail may take the principal on a Sunday, or in another state. Johnson v. Tomkins, 1 Baldwin’s C. C. R. 577.If the defendant be discharged under an insolvent law of the state where the contract is made, after the bail bond has been assigned to the plaintiff, the court will not order an exoneretur to be entered on the bail piece. Bosbyshell v. Oppenheimer, 4 Wash. C. C. R. 317.By the Pennsylvania practice, filing the declaration before the return of the writ, is not a waiver of the bail. The English rule is otherwise, unless the declaration be filed de bene esse. Ibid.The undertaking of the appearance bail can be no otherwise fulfilled, than by the defendant giving special bail, if so ruled; and that bail justifying, if excepted to. Ibid.If, instead of ruling the marshal to bring in the body of the defendant, the plaintiff accept an assignment of the bail bond, and bring a suit thereon, still the court will not fix the appearance bail, if certain terms are complied with; one of which is the defendant’s entering special bail. Ibid.On a rule on the plaintiff to show his cause of action, who thereupon filed a positive affidavit of the debt, the court will not order the party making the affidavit, to be examined on oath in court; no ground appearing to the court to justify a suspicion that the debt was not due. Champion v. Ross, 4 Wash. C. C. R. 325.The court will not relieve the appearance bail, upon his delivering the principal in court, unless he put in and perfect special bail. Bosbyshell v. Oppenheimer, 4 Wash. C. C. R. 317.Although the special bail may deliver up the principal at any time before the second scire facias, it does not follow that the appearance bail may do it. Their engagements are of a different nature. Ibid.Where the defendant is discharged under the insolvent law of the state where the debt was contracted, and has given special bail, the court will order an oxoneretur to be entered on the bail piece. Richardson v. M‘Intyre, 4 Wash. C. C. R. 412.If the special bail surrender the principal, who has been discharged under an insolvent law, the court will discharge the principal from custody. Ibid.Under the act of assembly of Virginia, the defendant may enter special bail, and defend the suit at any time before the entering up of judgment, upon a writ of inquiry executed; and the appearance of the defendant, or the entry of special bail, before such judgment, discharge the appearance bail. Bartle v. Coleman, 6 Wheat. 475; 5 Cond. Rep. 142.If the defendant does not appear, or give special bail, the appearance bail may defend the suit, and is liable to the same judgment as the defendant would have been liable to; but the defendant cannot appear and consent to a reference, the report and judgment on which is to bind the appearance bail as well as himself. Such a joint judgment is erroneous, and will be reversed as to both. Ibid.District of Columbia. The bail is fixed by the death of the principal after the return of the ca. sa. and before the return of the scire facias; and the bail is not entitled to an exoneretur in such a case. Davidson v. Taylor, 12 Wheat. 604; 6 Cond. Rep. 660.Ohio. The recognizance of special bail being a part of the proceedings in a suit, and subject to the regulation of the court, the nature, extent, and limitations of the responsibility created thereby, are to be decided, not by a mere examination of the terms of the instrument, but by a reference to the known rules of the court, and the principles of law applicable thereto. Whatever, in the sense of these rules and principles, will constitute a discharge of the liability of the special bail, must be deemed included within the purview of the instrument, as much as if it were expressly stated. Beers et al. v. Haughton, 9 Peters, 329.By the rules of the circuit court of Ohio, adopted as early as January, 1808, the liability of special bail was provided for and limited; and it was declared, that special bail may surrender their principal at any time before or after judgment against the principal, provided such surrender shall be before a return of a scire facias executed, or a second scire facias returned “nihil” against the bail. And this, in fact, constituted a part of the law of Ohio, at the time the present recognizance was given; the same having been so enacted by the legislature. This act of the legislature of Ohio, was in force at the time of the passage of the act of Congress of the 19th of May, 1828, regulating the process of the courts of the