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Time for

Notice of justification.] If the bail mean to justify, notice must be served on the plaintiff's attorney previous to justification. The time for justification is eight days from the day of and notice. notice of exception; and notice of justification must be given four days before the day of justification.41

justification

Requisites.

The notice sets forth, that the bail already put in will on a certain day justify themselves; or that one or more will be added and justify themselves, stating the time and place of justification, and before whom they will justify. A justification, at the time and place mentioned in the notice, is good, although before an officer other than the one named in the notice, especially if the plaintiff has not been misled.42

The christian names of the bail should be inserted in the notice of justification, as well as in the notice of bail.43 And a person has been rejected as bail, on the ground that he was described, in the notice of justification, by a different name from that which was given to him in the notice of bail.44 It has been said that the notice of justification ought to contain the addition of the bail.45 But this only applies to added bail;46 when the same bail are regularly put in and excepted to, the defendant need not describe them in his notice of justification.1

Before the time for justification has expired, if the defendant's attorney wish for an extension of time to add and justify bail, he may in general obtain it, if it appear to be necessary, and not sought for merely for the purpose of delay.43

41 Rule 13.

422 Wendell. Rep. 293.
43 1 Tidd. Pract. 289.
44 1 Chit. Rep. 494. note.
45 1 Chit. Rep. 351. a.
46 1 Bos. & Pul. 335.

47 1 Tidd. Pract. 289. In the
common pleas in England the
want of a description of bail in
the notice of justification, although
no notice of bail be given, is
waived by the plaintiff's having
excepted to them, because when

he entered his exception in the filacer's book, he must have seen where the bail lived so as to give him an opportunity of inquiring about them, 1 Taunt. 17. But it does not seem that the same rule prevails in the king's bench. See Tidd. 290, and see 1 Dunlap's Pract. 176, where this rule is stated in broader terms and applied to the notice of bail.

48 3 East. 145. 1 Archb. Pract. 113.

whom.

Justification of bail.] Formerly bail could only justify in open court, except in the case of a defendant taken in custody during vacation, when they might have justified before a judge at his chambers.19 This practice was first altered by a rule adopted in August term, 1816:50 and it is now provided by Before rule, that "bail may justify before a justice of this court at chambers, or before a supreme court commissioner, with a right of appeal of either party to the court."51 For the purpose of justifying, the bail, whether justifying in or out of court, must appear personally before the court or judge, and may be examined viva voce; but as to their sufficiency by the opposite party.52 If the court or judge be satisfied as to their sufficiency, a rule or order will be granted for their allowance.

qualifica

Grounds of opposing justification.] The justification of Personal disbail may be opposed, either on account of some personal dis- tion. qualification, as that they are not housekeepers, or worth the sum required; or on the ground that they have assumed fictitious names, or offer themselves under suspicious circum- Suspicious stances, as that they do not know the defendant and the like 53 stances. or it may be opposed on the ground of some irregularity or defect in the notice of justification, or of bail, or in the service thereof.54

circum

To falsely represent, or personate another, and in such as- Defect in sumed character to become bail, is an offence, for which the notice, &c. party offending may be punished by imprisonment in a state prison.55 Where bail are personated, the court may direct a vacatur of the bail. But this power is exercised with great discretion, and the application will be refused, if the merits of the case do not appear clear: if the personation were felonious, relief will be refused, until the party personated has prosecuted the felon.56

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In what ca

ses.

If bail have sworn to a false account of their property, without the privity of the defendant or his attorney, the plaintiff has no other remedy than by indictment for the perjury." It is a rule in the king's bench, that where there have been three notices of justification, and two changes of bail, they shall not be allowed to justify, until the plaintiff has been paid his costs occasioned thereby, or the defendant's attorney has undertaken for the payment of them.58 It has been held an objection that the defendant, having given notice of bail, had since changed his attorney without notice to the plaintiff, or leave of the court, and had given notice of bail by a new attorney.5

59

Further time to justify.] If the bail be rejected for any defect in the bail piece, as that it does not appear thereby that the person before whom it was taken was authorised to take the acknowledgment of special bail;60 or in the notice of bail or of justification;61 or in the service thereof;62 or if they are prevented from justifying, by circumstances happening after they were put in, as by subsequent insolvency;63 or by their having given up housekeeping, further time will, in general, be allowed to justify.65 But when bail offer themselves, and are rejected on account of some personal insufficiency, existing at the time they were put in, as by their being then attornies,6 &c., time will seldom be allowed to add and justify others.67

64

If the bail, from any unforeseen accident, cannot attend, or if, after notice of justification given, they refuse to attend, further time will in general be granted; either to justify the same bail, or to add and justify others, upon an affidavit of the fact, that the person who has not attended, had consented

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to become bail; and that if he had attended, he would have been able to justify.69

68

If the defendant do not put in special bail, in the time required; or if they do not justify, if excepted to, within the time allowed for justification; the plaintiff may either take an assignment of the bail bond, and bring an action against the bail: or if he be dissatisfied with the bail below, or the sheriff' have not taken a bail bond, he may proceed against the sheriff. But as these matters do not form a part of the direct proceedings to judgment, they will be reserved, with other incidental topics, for the third part of this work.69

1 Archb. Pract. 113.

69 See post Part 3. Vol. 2,

CHAPTER IV.

OF THE DECLARATION.

SECTION I.

OF THE PARTS AND REQUISITES OF THE DECLARATION.

It is not proposed in this chapter, to treat of any thing more than the merely formal parts of the declaration: such as its conformity to the writ; the title, commencement, &c. Of the rules of pleading, as there are works expressly on this subject, and as a cursory notice would be of little or no value, it has been thought better entirely to omit the consideration.

Rule as to

process bailable.

OF THE CONFORMITY OF THE DECLARATION TO THE WRIT.

The declaration must conform to the writ, as it respects, 1. The parties to the suit, their names and the character in which they sue or are sued; and, 2. The cause and form of action.

As respects the parties to the suit.] If process is sued out in the name of one plaintiff, and the declaration delivered in the name of two, it is bad:101 and where several defendants are sued by bailable process, the plaintiff must declare jointly

101 1 Bos. & Pul. 383.

Dig. Pleader C. 13. Co. Lit.

1

1 Dunlap. Pract. 236. Com. 303. a.

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