Page:United States Statutes at Large Volume 2.djvu/717

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’I"WELFTH CONGRESS. Sess. I. Ch. 25. 1812. 681 and so many dlSG1'€Ct p€l'SOHS, Ul dlllérenl parts of the district, as such {0, taking ba;] court shall deem necessary, to take acknowledgments of bail and anda. and affidnviw, vhs; which acknowledgments of bail and aflidavits shall have the like E:::;k‘;g“" force and effect as lF¢3k€Yl before any judge of said court.; and any per- takin m have _ United States, in the new states; and must therefore be deemed as a part of the " modes ofprnceeding m su1ts·," and to have l’>0€l1 adopted by lt: S0 that the surrender of the principal within the tlmo 2;; prescribed, is not a mere matter of favour of the court, but is strictly a matter of legal right. In ie not strictly true, that on the return of " non est inventusv to a capias ad satisfaciendum against the principal, the bml is “ fix¤d," m courts acting professedly under the common law, and independently of statute. So much are the proceedings against bail deemed a matter subject to the regulation and practice of the court, that the court will not hesitate to relieve them in a summary manner, and direct an exoneretur to be entered in cases by the indulgence of the court, by giving them time to render the principal until the appearance rlay of the last scirc Facias against them, as in cases of strict right. Ibid. When bail is entitled to be discharged, ex debito justitiae, they may not only apply for an exoneretur by way of gummary proceeding, but they may plead the matter as a bar to the suit, in their defence. But when tho discharge is matter of indulgence only, the application is to the discretion of the court; and an cxcneretur cannot he insisted on, except by way of motion. Ibid. When theparty is, by the practice of the court, entitled to an exoneretur without a positive surrender of the principal, according to the terms of the recognizunce ; he i , a. forticri, entitled to insist on it by way of defence, when he is entitled, ex debito justitim, to surrender the principal. Ibid. The doctrine is fully established, that where the principal would be clearly entitled to an immediate and unconditional discharge, if he had been surrendered, there the bail are entitled to relief by entering an exonorctur without any surrender. And, n fortiori, this doctrine will apply, when the law prohibits the party from being imprisoned at all, and where by the positive operation of law the surrender is prevented. Ibid. Where the defendants in a judgment are not liable to be imprisoned, having been released under the insolvent laws of a state, the pecial bail in not bound to surrender them in his discharge. Beers et al. 1:. Haughton, 1 M‘Lean>s C. C. R. 231. To an action cm the recngnizance of bail, he may plead the discharge of his principal. Ibid. To hold to bail under the statute of Illinois, the affidavit must stats more than the belief of the assent, gthe legal import of the action on which it is founded. Wright et al. v. Cayswell, 1 M‘Lea¤’¤ C. C- R- The act of 20th February, 1839, which adopted the state laws, in regard to imprisonment of debtors, took immediate effect, as well in suits pending, as in other cases. Gray, Sherwood & C0. v. Monroe et ul., 1 M‘Leun’s C. C. R. 528. The law relates to the remedy, and under it, when appearance bail has been given, the defendantxnay, on motion, be discharged on common bail. Ibid. Bail in Admiralty, and in Prize Causes.-VVhere the court of admiralty has parted with the possession of the property upon bail or stipulation, and it is necessary for the purposes of justice to retake the proparty into the custody of the court, the proper process against any person not a party to the stipulation, ut who is alleged to have the actual or constructive possession, is :1 moniticu, and not an execution in the first instance. The Gran Para, 10 Wheat. 497; 6 Cond. Rep. 199. Wherever a stipulation is taken in an admiralty suit for property subjected to legal process and condemnation, the stipulation is deemed a mere substitute for the thing itself; and the stipulators are liable to the exercise of all those authorities on the part of the court, which it could properly exercise if the thing was in custody. The Palmyra, 12 Wheat. 1; 6 Cond. Rep. 397. Regularly there should be no delivery of prize propert on hail, until after a hearing nf' the cause, and in most cases a sale is preferable to an appraisement. lhs George, 2 Gallia. C. C. R. 249. _ Proceedings by libel were instituted upon a. seizure of goods, and a. bond given for their appraised value on the delivery of the goods to the claimant. Afterwards the libel was by amendment changed to an 1ll• formation, and the goods were condemned. On an application for an attachment against the obhgcrs m the bond, it was held that although the case was not regularly within the 89th section of the collection law, yet a compliance with the stipulations in the bond might be enforced by attachment against the oblagors. United States u. Four Part Pieces ot‘WocllenCloth, 1 Paine, 435. And the court held that it made no difference that the obligor; were only sureties, and had not themselves received the goods. Ibid. _ _ _ If the claimant is not a party on the bond, all the chligors are to be deemed principals. Ibgd. _ The lmnd was taken in the district court of New York, and under the statute dividing the district, the proceedings were transferred to the district court of the northern district, and by a subsequent statute tu this court, where the condemnation took place. The condition of the bond was to pay the appraised value of the goods into the district court, if they should be condemned in that court. Held, that a. condemnation in this court had the same effect to forfeit the bond. Ibid. _ _ _ In prize causes, before :1 hearing, tho propcrty is never deliveredpntbzul, unless by consent._ If It IS perishable, the proper remedy is by an appraisement and sale; and in like manner the court will decree n sale, pending the proceedings, for any other justifiable cause. After a hearing, the property muy, xr: the discretion of the court, be delivered on bail. In cases ordered For furtheriprootj a delujery on bail is sometimes allowed, to the claimants; and if they decline. to the captors. llut it is a proceeding adopted with extreme caution, as it opens adoor to many inrunveniencoe, and sometimes to frauds. ln no case should :1 delivery on bail take place, until the court is Fully satisfied that the. apprmsement is perfectly fair. and the property estimated ut its Full value. The ship Euphrates, l Galhs. C. C. 451. _ _ Where, on the hearing, the property is acquitted, and nn appeal is interposed to a tribunal not sitting within the same jurisdiction; or into which the property does not Follow the cause, (as an appeal to the ¤UPr€m€ court of the United States,) the claimants are generally allowed a delivery of the property, orm a case of sale of the proceeds on bail. Where there is a decree ofcondemnaticn, the same rule is generally adopted, an to the captors. But it is always uu application to the sound discretion of the court; and Von. II.—86