and so many discreet persons, in different parts of the district, as such court shall deem necessary, to take acknowledgments of bail and affidavits; which acknowledgments of bail and affidavits shall have the like force and effect as if taken before any judge of said court; and any per-
United States, in the new states; and must therefore be deemed as part of the “modes of proceeding in suits,” and to have been adopted by it: so that the surrender of the principal within the time thus prescribed, is not a mere matter of favour of the court, but is strictly a matter of legal right. Ibid.
It is not strictly true, that on the return of “non est inventus” to a capias ad satisfaciendum against the principal, the bail is “fixed,” in 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 day of the last scire facias against them, as in cases of strict right. Ibid.When bail is entitled to be discharged, ex debito justitiæ, they may not only apply for an exoneretur by way of summary proceeding, but they may plead the matter as a bar to the suit, in their defence. But when the discharge is matter of indulgence only, the application is to the discretion of the court; and an exoneretur cannot be insisted on, except by way of motion. Ibid.When the party is, by the practice of the court, entitled to an exoneretur without a surrender of the principal, according to the terms of the recognizance; he is, a fortiori, entitled to insist on it by way of defence, when he is entitled, ex debito justitiæ, 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 relief by entering an exoneretur without any surrender. And, a 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 defendant in a judgment are not liable to be imprisoned, having been released under the insolvent laws of a state, the special bail is not bound to surrender them in his discharge. Beers et al. v. Haughton, 1 M‘Lean’s C. C. R. 231.To an action on the recognizance of bail, he may plead the discharge of his principal. Ibid.To hold to bail under the statute of Illinois, the affidavit must state more than the belief of the assent, or the legal import of the action on which it is founded. Wright et al. v. Cayswell, 1 M‘Lean’s C. C. R. 471.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 & Co. v. Monroe et al., 1 M‘Lean’s C. C. R. 528.The law relates to the remedy, and under it, when appearance bail has been given, the defendant may, on motion, be discharged on common bail. Ibid.Bail in Admiralty, and in Prize Causes.—Where 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 property into the custody of the court, the proper process against any person not a party to the stipulation, but who is alleged to have the actual or constructive possession, is a monition, 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 proper exercise if the thing was in custody. The Palmyra, 12 Wheat. 1; 6 Cond. Rep. 397.Regularly there should be no delivery of prize property on bail, until after a hearing of the cause, and in most cases a sale is preferable to an appraisement. The George, 2 Gallis 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 information, and the goods were condemned. On an application for an attachment against the obligors in 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 obligors. United States v. Four Part Pieces of Woollen Cloth, 1 Paine, 435.And the court held that it made no difference that the obligors were only sureties, and had not themselves received the goods. Ibid.If the claimant is not a party on the bond, all the obligors are to be deemed principals. Ibid.The bond 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 to 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 a hearing, the property is never delivered on bail, unless by consent. If it is perishable, the proper remedy is by an appraisement and sale; and in like manner the court will decree a sale, pending the proceedings, for any other justifiable cause. After a hearing, the property may, in the discretion of the court, be delivered on bail. In cases ordered for further proof, a delivery on bail is sometimes allowed, to the claimants; and if they decline, to the captors. But it is a proceeding adopted with extreme caution, as it opens a door to many inconveniences, and sometimes to frauds. In no case should a delivery on bail take place, until the court is fully satisfied that the appraisement is perfectly fair, and the property estimated at its full value. The ship Euphrates, 1 Gallis. C. C. R. 451.Where, on the hearing, the property is acquitted, and an 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 supreme court of the United States,) the claimants are general allowed a delivery of the property, or in case of sale of the proceeds on bail. Where there is a decree of condemnation, the same rule is generally adopted, as to the captors. But it is always an application to the sound discretion of the court; and
