(And see ERROR II.)

22 Where a ca. sa. is returnable against the principal on a particular day, before which a writ of error is allowed and served; that operates as a supersedeas to any proceeding against the bail, though the ca. sa. has lain four days in the office before the allowance of the writ of error. Perry v. Campbell. 3 T. Rep. 390.

23 A writ of error allowed is a supersedeas in law to all further proceedings in the court below; and therefore proceedings were set aside with costs for irregularity where the ca. sa. was returned after notice of such allowance though on the same day, and sci. fa. afterwards taken out against the bail. Miller v. Newbald. 1 East, 662. 24 A writ of error, though not returned, is of itself a supersedeas; and may be pleaded by the bail to have been issued and allowed after the issuing and before the return of the ca. sa. against the principal, so as to avoid proceedings against them in scire facias upon the recognizance of bail prosecuted after a return by the sheriff of non est inventus made pending such writ of error. Sampson v. Brown. 2 East,

439.

25 Upon a writ of error sued out by the principal after the bail are fixed, and proceedings against them in seire facias, the court will only stay

proceedings against the bill pending the writ of error on the terms of the bail's undertaking to pay the condemnation money, and the costs of the scire facias, and (if it be a case in which there is no bail in error) to pay the costs also of the writ of error if judgment should be affirmed. Buchanan v. Alders and another. 3 East, 546.

26 On the quarto die post of the return of the ca. sa. against the principal, the bail are fixed; and if after that time they apply to stay proceedings against themselves pending a writ of error, the court (C. P.) will only graut the application on their undertaking to pay the condemnation money, and the costs of the action against themselves, of the application, and, (where there is no bail in error) of the proceedings in error. Copous v. Blyton. New Rep. 67.

27 The bail to the action are not liable to pay the costs of a writ of error. Yates v. Doughan. 6 Term Rep. 288.

28 The same persons who were bail in the court of B. R. may justify again as bail upon a writ of error returnable in parliament. Martin v. Justice. 8 Term Rep. 639.

29

A recognizance entered into by the bail in error without the principal is good. Dixon v. Dixon. 2 Bos. & Pull. 443.

30 If on a bond debt, double the sum secured by the bond be the sum for which the bail bind themselves in the recognizance in error, it is sufficient, though a further sum be due for interest and costs, and nominal damages have been recovered. 2 Bos. & Pull. 443.

31 Bail'in error must be put in within four days after final judgment signed, without reference to the time of the allowance, or serving the copy of it. Jaques v. Nixon. 1 Term Rep. 279.

32 A defendant has four clear days after final judgment to put in baik

47 H. taken upon excommunicato capiendo, bailable while the return of the habeas corpus is under the consideration of the court. The King v. Davison. 1 Salk. 105, 1 Lord Raym. 603. 48 Where on an indictment for murder the prisoner pleads the king's pardon before conviction, the court will not require bail for his appearanee to answer an appeal under 3 H. 7, c. 1. They will not require him to give securities for his good behavior under 5 and 6 W. and M. c. 13, unless he appear to be a person of ill fame. The King v. Chetwynd. 2 Str. 1203.

19 Bail for default of prosecution, Fitzpatrick's case. 1 Salk. 103. 20 Que in execution for usury not bailable. Anonymous. 5 Salkeld,

58.

21 It is usual to require four bail in felony, but discretionary in the Court to take less. Anon. Lofft,

29.

22 Persons committed for forcibly resisting custom-house officers in the execution of their duty, cannot demand to be bailed as of right. Rex v. Dunn. 5 Burr. 2640. 23 Special bail shall be given to pay the forfeiture, or yield the body, for defendant having unsealed wrought silks in his custody. Rex v. Rebord. 3 Burr. 1569.

24 In civil actions it is not necessary.

for defendant to join in recognizance of bail, and in criminal action it may be dispensed with by the court. Smith v. Villars. 1 Salk. 3. 25 In a criminal case the defendant's attorney may be his bail. Rex v. Bowes. 2 Doug. 467, n.

26 Bail taken by the court on the charge of a rape, both from the principal and accessaries on special affidavits, and particular circumstances. The King v. Grieffenburgh. 4 Burr. 2179.

27 One committed by the House of Commons for a contempt cannot be admitted to bail by the king's bench. Murray's case. 1 Wils. 299. 28 The king is only a trustee for the party in a forfeited recognizance. The King v. Eyres and Bond. 4 Burr. 2118.

29 A woman bailed that was indicted for petit treason. Barney's case. 3 Salk, 56.

30

Upon articles of the peace being exhibited, the court may require bail for such a length of time as they shall think necessary for the preservation of the peace, and are not confined to a twelvemonth. R. v. Bowes. 1 Term Rep. 696. 31 Where the court had at first required bail for fourteen years, they afterwards lessened the time to two years on its appearing to them that an information was depending against the defendant on the same account, which must necessarily be determined within that time. 1 Term Rep 696.

32 Although it be not necessary to state, in a warrant of commitment for felony, that the act was done feloniously; yet unless it sufficiently appear to the court that a felony has been committed, they are bound to bail the defendant. R. v. Judd. 2 Term Rep. 255.

33 Though a warrant of commitment for felony be informal, yet if the corpus delicti appear in the deposi tions returned to the court, they will not bail, but remand the prisoner. R. v. Marks. 3 East, 157.

84 The court have a right to bail the accused in all cases of felony, even of murder, if they see occasion, where there is any doubt either on the law or fact of the case. 3 East, 163, 4, 5.

35 When the House of Lords adjudge that any matter is a breach of privilege, their adjudication on the party accused is a conviction, and no court can bail him. R. v. Flower. 8 Term Rep. 314. 36 A commitment by a justice of peace, for a time certain, as for 14 days, under the vagrant act 17 G. 2, c. 5, is a commitment in execution, and the party is not entitled to be bailed. R. v. Brooke. 2 Term Rep. 190. 87 The sheriff has no authority to take a bond for the appearance of persons arrested by him under process issuing upon an indictment at the quarter sessions for a misdemeanor; he can only take a recognizance for their appearance. Bengough v. Rossiter. 4 Term Rep.

505.

(Affirmed in Cam. Scac. Eyre C. J. of C. B. dissent. 2 H. Blackstone, 418)

38 A common law the sheriff could not bail any persons indicted before justices of the peace, though he migt bail those indicted before him at his torn. Stat. 23 H. 6, c. 9, was passed to compel him to take bail where he might have done, and neglected to do so. But stat. 1, E. 4, c. 2, takes away his power of Lailing altogether, and requires him to return all indictments, taken before him at his torn, to the justices at the next sessions. 4 Term Rep.

an attachment out of chancery; that statute referring only to process in courts of common law. Studd v. Acton. 1 H. Black. 468. 41 Under what circumstances bail will be allowed on a charge for treason. 3 Dallas. 17.

42 In an action against the governour of Gaudaloupe, for an injury done in that island, the defendant after argument, was held to bail. 2 Dallas, 247.

VIII. Special Bail, how and when put

1

2

in.

The plaintiff is entitled to two real and substantial persons, as special bail; but if one real and one fictitious person be put in as special bail, the plaintiff cannot treat the bail-piece as a nullity, and take an assignment of the bail bond; but the proper course is to except to the suf ficiency of the bail. Caines v. Hunt. 8 Johns. Rep. 358.

A defendant has 20 days after the last day of the second week of the term, within which to put in special bail. Lane V. Cook. 8 Johns. R.359.

3 It is an offence within the stat. 40 G. 3, c. 18, to sell, by wholesale, bread before it has been baked 24 hours: even though the seller give directions to the person to whom he sells it, not to sell it by retail until the expiration of the 24 hours. R. v. J. Smith. 8 Term Rep. 588. 4 The crown, by letters patent granted to the master and wardens of the corporation of bakers, (there being four wardens,) by themselves and their deputy or deputies full power to overlook and correct the trade of baking: held that the master and one warden could not justify entering the house of a baker to overlook bread; for if they acted as principals, they did not amount to a majority of persons to whom the power was given; and if they acted as deputies, they were bound to shew that they were appointed by the majority. Cook v. Loveland. 2 Bos. & Pull. 31.

5 Qu. Whether an authority to enter the house of a person of a particular trade, be incident to an authority given by charter to overlook and correct that trade. 2 Bos. & Pull. 33.

6

Also, whether the crown have power to grant such authority? 2 Bos. & Pull. 33.

BANK.

1 In an action brought by the president, directors and company of the bank of the United States, it is not necessary to set forth the act of incorporation, or the names of the individuals composing the company. President, Directors, and Company, of the Bank of the United States v. Haskins. 1-Johns. Cas. 132.

2 A clerk in the bank, who acted as a book keeper, and whose particular duty it was to keep the ledger into which the entries are copied from the teller's cash book, received money from A. who was a dealer with the bank, for the purpose

3

4

5

6

of having the same deposited in the bank, and which he entered in the ledger, and afterwards into the dealer's bank book; but the money was not received by the teller, or entered in his cash book, and was supposed to be embezzled with other money by the clerk, who absconded; it was held that the clerk, in making the deposit, was agent of A. and not of the bank; and that A. must be answerable for the deficit in the deposit. The Manhattan Company v. Lydig. 4 Johns. R. 377. Whether the bank used due diligence to detect the fraud in the clerk, is a question of law, if the bank takes the usual and customary mode to detect the frauds or mistakes of its clerks, it will be sufficient evidence of due diligence. Ib. If a dealer with the bank sends his bank book, with the money to be deposited, and the receiving clerk or teller enters the amount to his credit, in such bank book, at the time the deposit is made, it is conclusive on the bank; aliter, if the deposit is first made, and the entry is afterwards copied from the ledger into the dealer's bank book. The Manhattan Company v. Lydig. 4 Johns. Rep. 377.

The statute of 1809, c. 37. s. 1. imposing a penalty of two per cent. per month on the amount of bills of any bank, of which payment is by such bank refused, militates with no principle of the constitution, either of the United States, or of this Commonwealth. Brown v. The Penobscot Bank. 8 Mass. 445. By an act of the state of NewHampshire, creating a banking corporation, it was provided, that if the corporation should refuse or neglect to pay their bills ondemand, the original stockholders, their successors,assigns, and the members of the corporation, should, in their private capacities, be liable to the holders' of the bills: It was held, that such only of the original stockholders, their successors, &c. as were members of the