ble to the court to which the said writ of execution was returnable. And in all other cases the said writ shall be sued out of and be returnable to the court of common pleas, to be holden in such county, whereof one of the parties thereto is an inhabitant or resident; unless where the complainant is not an inhabitant or resident within the commonwealth; and in such case the said writ may be sued out of and be returnable to any court of common pleas within the commonwealth, at the election of the complainant. II. Of declaring for damages. Where the complainant, in any writ of audita querela, Ibid. sec. 9. may, by any subsequent action at law, recover, of the respondent, any recompense in damages or otherwise, for the wrongs done him by the service of such execution, for the setting aside and annulling of the proceedings upon which the said writ of audita querela is brought; in all such cases, the complainant may have the same remedy upon his writ of audita querela, and in his declaration therein may declare for the same recompense in damages, or otherwise, and judgment shall be rendered, and execution issue thereupon accordingly. III. The respondent's plea. sec. 10. The general issue in all actions prosecuted on writs of Mas. Stat. 1780, c. 47. audita querela may be the plea of "not guilty ;" and upon such plea being duly pleaded by the respondent, either party may give any special matter in evidence, by which the truth and justice of the cause may be known. The respondent however may plead any special matter in bar or the said general issue, at his election. IV. Of the liberation of the complainant in case he be in gaol on the execution against which he seeks relief. In case where the complainant in a writ of audita que• Ibid. sec. 11. rela is in gaol by virtue only of the execution against admitted to bail. which he seeks relief, the court to which such execution is returnable, or the supreme judicial court, upon the appeal, may, at their discretion, according to the cirComplainant may be cumstances of the case, enlarge and liberate the complainant from gaol, and admit him to bail, upon his sureties' (being sufficient freeholders within the commonwealth, to be approved of by the court,) giving bond, Penalty of the bond. together with the complainant, jointly and severally to the Condition of the bond. Surrender of the complainant to the goal keeper under the execution. respondent, in such penalty as shall be directed by the court, conditioned, if final judgment be rendered for the respondent, that the complainant shall, within thirty days after the entering such final judgment, surrender himself to the gaol keeper, to be detained in custody under the same execution, and also such final judgment as shall be rendered as aforesaid, for the respondent. And if the said complainant shall surrender himself to the gaolkeeper as aforesaid, he shall be in custody under said execution, as fully and to all intents and purposes, as if the said writ of audita querela had not been brought, nor the said complainant admitted to bail. TITLE XXII. BAIL. BAIL (from the French word bailler, to deliver,) is so call- 3 Bl. Com. 290. ed, because the defendant is bailed, or delivered to his sureties, upon their giving security for his appearance, &c. and is supposed to continue in their friendly custody instead of going to gaol. 1 Of taking bail, in civil actions. 2. Of the bail bond. 3. Of the liability of the officer for taking insufficient bail. 4. Proceedings of the plaintiff against the bail on avoidance of the principal. 5. What shall discharge the bail. 6. Proceedings of the bail against the principal. 7. How the principal is to be disposed of, after being surrendered. 8, Of bail, in criminal cases. I. Of taking bail, in civil actions. The right of the party, arrested in a civil action, to be Per Sewall, J. in Sparhawk v. Bartlet. delivered upon bail, and the duties and restraints, incum- 2 Mas. Rep. 194. bent upon officers intrusted with the authority of making such arrests, depends chiefly in England upon the statute 23 Hen. 6, c. 10. This statute has provided that sheriffs, coroners &c. shall let to bail persons by them arrested, or in their custody, by force of any writ, bill, &c. in any personal action, &c. upon reasonable sureties, (having sufficient within the county) to keep, &c. In this state, the right of a party, arrested in a civil Ibid. action, to be delivered upon bail, depends principally 2 Mas. Rep. 194. Ibid. Ibid. v. Bartlet, 2 Mas. Rep. 188. upon the same ancient statute of Hen. 6. But the statute of this government, * regulating bail in civil actions, has altered the law in several particulars, respecting the mode of taking, and the effect of bail to the sheriff. By this statute it is provided † that bail given on mesne process, in any civil action, may be taken for the appearance of the party to answer the suit, and to abide the order and judgment of the court thereon. And when the principal avoids, the person recovering judgment in the action, is entitled to a writ of scire facias from the same court against the bail ‡. And when no just cause is shewn to the contrary, judgment may be given against the bail for the amount of damages and cost recovered against the principal, &c. It seems to be, by the effect of this statute, that bail to the sheriff is also bail to the action; and avails immediately to the benefit of the party, at whose suit the bail is taken. A necessary consequence of these provisions has been, that the sheriffs' return," that he has taken the body and holden to bail," is a complete execution of his writ; that the party bailed is thereby sufficiently in court for the action against him to proceed to final judgment; that the sheriff is therefore not liable to any compulsory process for a more perfect execution of his writ, if the party at whose suit the bail is taken, dislike the sureties. For Decided in Sparhawk their sufficiency he is compelled to rely upon the discretion of the sheriff; and if the sureties prove insufficient, the party injured may have an action against the sheriff for his negligence or misbehaviour in accepting and returning insufficient sureties. 3 Bl. Com. 290. The sheriff, if he pleases, may let the defendant go without any sureties i but that is at his own peril: For, after once taking him, the sheriff is bound to keep him safely, so as to be forth coming in court; otherwise an action lies against him for an escape. But, on the other + Ibid. sect. 2. * Stat. 1784, c. 10. ibid. sect. 1. hand, he is obliged, by statute 23 Hen. 6, c. 10, to take, (if it be tendered) a sufficient bail bond. II. Of the bail bond. The method of putting in bail to the sheriff, is by 3 Bl. Com. 290. entering into a bond or obligation, with one or more sure ties, consisting of real substantial, responsible bondsmen, with condition " that the defendant appear and answer the Stat. 1784, c. 10, s. ¿. suit, and that he abide the order and judgment of the court thereon," which obligation is called the bail bond. The effect of this condition is that the defendant shall By the court in satisfy the plaintiff's judgment or surrender his body to 2 Mas. Rep. 484. be taken in execution or that the bail shall pay the debt. This bond, thus taken, when returned by the sheriff, has immemorially been considered so far a matter of record, that the plaintiff may sue out a scire facias on it in his own name against the bail. And this practice was sanctioned by a provincial statute passed as early as the 5 Will. and Mar. The statute of Hen. 6, requires that the undertaking of the bail, be by bond. 1. T. R. 421. For where it was a simple contract undertaking, and Rogers v. Reeves, assumpsit was brought on it, the court held, that the statute having pointed out the mode, to wit, by bond, such mode was to be pursued ; and that a simple contract undertaking was void. 1 Str. 399. So the bail bond must be founded on "good and legal Mills v. Bond, process;" for where it was taken on a writ which appeared to be returnable on a day out of term; the writ being void, the bail bond was held to be so too. In England, the plaintiff has no interest in the bail bond Per Sedgwick, J. in Sparhawk v. Bartlet, until the assignment, nor except by that; for until then 2 Mas. Rep. 202. it is merely the security of the sheriff: But in this state, the bail bond is originally taken for the use of the plaintiff and an assignment is not necessary to enable him to support a scire facias upon it. |