Sparhawk v. Bartlet, 2 Mas. Rep. 188. Ibid. S. C. Per Sewall, J. Same Case. Stat. 1784, c. 10. s. 2. Plaintiff entitled to the bail. III. Of the liability of the officer for taking insufficient bail. An action on the case will lie against the sheriff for taking insufficient bail. So will this action lie although the taking such insufficient bail arose from the mere negligence of the sheriff, without the imputation, of corruption or design, and notwithstanding the ignorance of the sheriff of their insufficiency, at the time he received them. For in England, the sureties, accepted as bail by the sheriff, are taken at his risk. This is the construction there given of the statute of Hen. 6; from which sheriffs here as well as there derive their authority to take bail ; and by which their duty, in this respect, is regulated. So although the plaintiff accept the bail bond, and prosecute the action against the bail to judgment and execution, and commit the bail to prison, upon such execution, and the bail be afterwards discharged therefrom by due course of law; such proceedings will not operate a release to the sheriff of his liability to the plaintiff. IV. Proceedings of the plaintiff against the bail, on avoidance of the principal. It is provided by statute, that when the principal shall his scire facias against avoid, so that his goods, lands, or chattels cannot be found to satisfy the execution, nor his body found to be taken therewith; the person for whom judgment was given, shall be entitled to his scire facias from the same court against the bail: And in case no just cause is shewn, judgment shall be given against them for the damages and costs, recovered against the principal, with additional damages and costs, and execution shall be awarded against them accordingly. But no scire facias shall be served upon the bail, unless it be done within one year next after the entering up final judgment against the principal. Justices of the Peace It is provided, by an additional act, that when bail shall thereafter be taken on mesne process, in any civil action, triable before any justice of the peace, and there shall have Stat. 1803, c. 133, s. 1. been a return of non est inventus upon the execution which issued on a judgment rendered on such process, the said empowered to grant a scire facias against bail. justice may proceed, within one year from the rendition of such judgment, to issue a scire facias upon the same judgment, against such bail; which writ, being duly served seven days at least before the time therein set for trial, and returned, the said justice may proceed to take.cognizance thereof; and if no just cause is shewn-to the contrary, to render judgment against such bail for the debt or damage and costs recovered against the principal, with additional damages and costs, and to issue execution accordingly. And it shall be no bar to such scire facias, that the debt and costs on the original judgment, when added together, exceed the sum of thirteen dollars and thirty three cents* but the plaintiff shall be entitled to receive his costs of suit, as in other cases, on such scire facias. V. What shall discharge the bail. It is provided by statute 1784, c. 10, s. 2, that if the Surrender of the prinbail shall bring their principal into court, before judgment cipal into court, is given upon the scire facias, and there deliver him to the order of the court, and shall pay the costs which may have then arisen upon the scire facias; then the bail shall be discharged. Surrender of the prin cipal before a justice So also by the statute 1803, c. 133, s. 2, which relates to the scire facias from a justice of the peace, it is provided, of the peace. that if the bail shall, at any time before final judgment upon the original suit is rendered against him, or upon * At the time this statute was enacted the jurisdiction of justices of the peace in civil actions was limited to cases wherein the damages alleged did not exceed thirteen dollars and thirty three cents : But now, by a subsequent statute, March 11, 1808, the jurisdiction of these magistrates is enlarged; and they may try all civil actions where the damages alleged do not exceed twenty dollars, Sec. 4. Sect. 1. the return of such scire facias, and before judgment thereon shall be rendered against him, bring his principal before such justice; and shall procure the sheriff of the county, or his deputy, or any constable of the town wherein such justice may reside, to attend and receive him, said justice shall thereupon order him into the custody of such officer, &c. And upon the payment of the costs which may have arisen on such scire facias, the bail shall be discharged. And it is made the duty of any officer as aforesaid, upon the request of such person or persons being bail as aforesaid, to repair to said justice's court, in order to receive the principal. If the scire facias be not seasonably issued and served, in such case the bail is discharged. And a justice has no authority to issue a scire facies against bail, unless he does it within one year from the rendition of judgment against the principal. Stat. 1784, e. 10, s. 3. In other cases, it is provided,that no scire facias shall be served upon the bail, unless it be done within one year next after the entering up final judgment against the principal. 1 Mas. Rep. 283! By the court in Cham- Ibid. Ibid. 485 So the bail of a bankrupt are discharged if not fixed previous to the certificate; for on surrendering the principal, and paying the costs of the scire facias, they would be entitled to a discharge, ex debito justitiæ. And whenever a surrender of the principal is necessary, it is done for the benefit of the plaintiff, that, by charging him in execution, he may hold his body as a pledge for his debt. But in the case of a certificated bankrupt, if the principal were surren dered, the court could not commit him; or, if committed, he would the next moment be entitled to his discharge. But if the bail were already fixed previous to the certificate, the plaintiff in such case may justly consider them as his debtors on their own contract, and the certificate having no retrospective effect as to the bail, they can derive no relief from it. If, after the issuing of the plaintiff's execution, and before the return, the bail surrender the principal to the sheriff holding the execution, the bond is saved at law, and the sheriff is obliged to commit him in execution. So it is saved, if the principal die before the return; for 2 Mas. Rep. 495. now it has become impossible, by inevitable accident, for the bail to surrender him. But the death of the principal at any time after the execution shall be returned unsatisfied and non est inventus indorsed, will not discharge the bail. The bail then, in this state, are not fixed until judgment Ibid, against them, unless by the death of the principal after the return of the execution: For, on either event, they are obliged to satisfy the plaintiff's judgment; and until one of these events shall happen, they are contingent, and not abso lute, sureties for the debt, If the proceedings be not stayed, the bail may plead in Ibid. bar to the scire facias, any matter sufficient to obtain their discharge, They may therefore plead, that " an alias execution issu- Ibid. 486. ed, on which the principal has been taken in execution : or that," since the return of the first execution, the principal had satisfied the judgment:" or, that "the plaintiff hath released it :" or, that "it hath been reversed or legally discharged." And where the bail are discharged, without surrendering Ibid. the principal, no costs are given to the plaintiff on the scire facias, VI. Proceedings of the bail against the principal. notis. The bail is considered, in law, as the gaolers of their 1 Bac. Abr. 205, in principal, and may therefore take him up, on sunday, and confine him till the next day, and then surrender him. and al. So the bail may justify breaking and entering a house, Sheers v. Brooks, (the outer door being open) in which the principal resides, 2 H. Bl. 120. in order to seek for him, for the purpose of rendering him. Champion v. Noyes Until the writ is returned, the principal, although in the By the court, in custody of the bail, cannot be surrendered by them to the 2 Mas. Rep. 484. sheriff: But after the writ is returned, and before final judgment, the bail may surrender the principal to the court, in which the suit is pending, and be discharged. By statute 1784, c. 10, s. 4, the bail may have their Stat. 1784, c. 10, s. 2. and 1803, c. 133, s. 2. Stat, 1803, c, 133, s. 3. remedy, by action on the case, against their principal, for all damages sustained by their becoming his sureties. VII. How the principal is to be disposed of, after being surrendered. The principal, when surrendered, shall be committed to the prison of the county, there to remain until thirty days after the rendition of the judgment (in case the surrender be on the original process) to be charged in execution; unless, before judgment, he gives new bail to the sheriff by bond, which, if forfeited, may be the foundation of a scire facias against the new bail. But if the surrender be on the scire facias, in such case if the creditor shall not, within thirty days next after such surrender, take the principal in execution, the sheriff shall discharge him, upon his paying the legal prison fees. If the principal be surrendered before a justice of the peace, the justice must order him into custody, and delivSee Append. No. 9. er to the officer receiving him a mittimus for his commitment to gaol. The form of this mittimus is prescribed by statute. cess. And the officer receiving the mittimus shall be allowed and paid, by the bail, for his receiving and committing the principal on the mittimus, the same fees as are provided by law for committing any defendant to prison on mesne proAnd all and every such officer or officers shall have the like power and authority, and shall be under the like obligations and regards whatsoever, to execute and return such mittimus, as he or they are under to execute and return any writ or execution whatever; and shall be liable to all the like action or actions, for any fraud or falsehood and neglect of their duty, as is provided by law in other cases. VIII. Of bail in criminal cases. S. C. J. may admit to to bail for any offence. All crimes, which are not capital, are bailable. So whenever the circumstances of the case shall appear require it, the supreme judicial court, in term time, or any one or more judges thereof, in the vacation, are authorized to bail any person wherever and for whatever |