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1. As to the English practice.
The statute of 26 Hen. 6. c. 9, provides that the sheriff should take bail upon condition written, that the prisoner should appear at the day and place contained in the writ, &c.' 1 Tidd. Pr. (4th edit.) 194.
This bail bond is given to the sheriff for the appearance only of the party; but it is held that no appearance is sufficient unless the party not only appears but puts in bail and perfects bail to the action: and if this be not effectually done, the bond to the sheriff is forfeited. 1 Tidd. Prac. 245. Gilb. C. P. 20. 2 Saund. 60, note b. 3 Bl. Com. 290. 7 T. R. 109.
1 Boss. & Pull. 225.
Bail to the action is by recognisance before the proper court at Westminster, or under the stat. 4 W. & M. c. 4, s. 1, before commissioners in the country. 1 Tidd. Pr. 217, 218.
In the King's Bench the recognisance is on condition 'that if the defendant be condemned in the action, he shall satisfy the costs and condemnation money, or render himself to the custody of the marshal of the marshalsea, or the bail will do it for him.' 1 Tidd. 220. Tidd. App. 94.
In the Common Pleas the recognisance is in a sum certain, 'that if the defendant be condemned in the action, he shall pay the condemnation or render himself a prisoner in the Fleet, and if he fail so to do, the bail do undertake to do it for him.' Highmore on Bail, 38. 3 Bl. Com. App. 19.
All process being returnable to and judgments awarded in the courts at Westminster, it should seem in strictness, that the party was bound to render himself there to meet the judgment immediately on the rendition thereof.
But by the practice of the courts the recognisance is not forfeited until a return of non est inventus on a capias ad satisfaciendum; and the bail may of right plead the want of the ca. sa. in bar of an action on the recognisance. 2 Tidd. 976.
By the course of practice the ca. sa. must be issued into the county where the original action is laid; and the return of the sheriff of that county alone is the proper return. 2 Tidd. 977.
2 Lutw. 1287.
In transitory actions the venue may be laid in any county, and the action is considered as laid in the county into which the original process issues or is supposed to issue. For if the
defendant lives in a county different from that in which the action is intended to be laid, it is presumed in practice that a capias has already issued into the county where the venue is laid and a testatum capias issues into the county where the defendant lives. 3 Bl. Com. 282 to 285. 1 Tidd. 80. If the venue be different in the declaration from the original, the consequences in the King's Bench would be a discharge of the bail. 3 Lev. 235. Barnes 114. 1 Tidd. 242. But in the Common Pleas it would be a simple irregularity. Impey. Pr. C. B. 169. 1 Chitty Plead. 249.
In England, therefore, when the action is laid in Middlesex and the defendant lives in Berks county, but is arrested in Oxford county, the ca. sa. issues to the sheriff of Middlesex, and not to the sheriff of Berks or Oxford, and the bail are chargeable by the return of the sheriff of Middlesex.
One reason why the ca. sa. issues into the county where the action is laid, may have been that anciently all actions were required to be brought in the counties where they arose, and the defendant was presumed to dwell there. And when afterwards actions became transitory the practice of issuing the ca. sa. continued as before. See Gilb. Pr. C. P. 15, 84, &c.
2. In Massachusetts there are several differences from the English practice which are proper to be considered.
Under the colonial government bail was taken for the appearance of the party, and it was declared that the surety should be liable not only for the appearance of the party, but also for the satisfaction of the judgment, unless he surrendered the party in discharge. And in case the principal was defaulted, or judgment passed against him, execution issued in the first instance against the principal and bail jointly. Colonial Acts, 1658, Title Surety, p. 144. Id. Title Surety, 1672, p. 2.
The provincial stat. 5 W. & M. c. 5, (Prov. Laws, 37) provides that where bail is taken not only for the appearance of the party to answer the suit, but also to abide the order or judgment of the court, that shall be given thereon, every surety shall be obliged to satisfy the judgment in case of the principal's avoidance, and the return of non est inventus upon the execution.'
The statute of the commonwealth, June 30, 1784, (1 Mass. Laws, 195) enacts substantially the same provisions.
Bail, therefore, in this State, given to the sheriff, seems always to have included bail to the action, as well as bail for appearance of the party; and so it was considered in Sparhawk v. Bartlett, 2 Mass. Rep. 188.
Transitory actions in this commonwealth are to be brought in the county where one of the parties lives. Stat. October 30, 1784, s. 13. (1 Mass. Stat. 71.) And trial and judgment thereon is to be had in the courts sitting within the county. Stat. July 3, 1782. (1 Mass. Stat. 71.)
If therefore the principles of the English practice are adopted in this State, the execution on the judgment should issue directed to the sheriff of the county where the judgment is awarded. The differences in other respects between our regulations and those of England as to bail, do not present any sound reason for a distinction in this particular practice.
The form of the recognisance in England requires a surrender at Westminster (at the Marshalsea or the Fleet Prison) because judgment is there awarded. The bail bond in this State is to abide the judgment generally, and judgment is awarded in the county where the court sits and the action is brought. By the common law in England, and by the stat. June 30, 1784 in this State, a ca. sa. must be issued and returned non est inventus before the bail are chargeable. In both countries a surrender of the principal by the bail in court discharges them. The general similitude is therefore very strong.
Were not the English authorities against it, it would seem that the true construction of the recognisance would require that the ca. sa. should in all cases issue to the sheriff of the county wherein the court awarding judgment is held it is there that the party is bound to render himself to meet the judgment. Sed ita lex scripta est.
The stat. October 30, 1784, s. 10, (1 Mass. Stat. 206.) provides that no person imprisoned upon mesne process shall be held in prison upon such process above thirty days after final judgment thereon, unless his body is within that time taken in execution; and he is not to be discharged before thirty days unless judgment be in his favor.
As in this State every person arrested on mesne process must be committed to the county jail, the legislature contemplated
that the execution might and indeed should in case of a commitment to prison in any county on mesne process, issue directed into the same county. And they considered it reasonable that the party imprisoned should be freed unless charged in execution within the thirty days after judgment.
It is certainly true, however, that though the legislature might in case of a commitment deem that the execution should regularly issue into the county where the arrest was made, yet that this affords no conclusive evidence of the law in case bail be taken on the arrest. But it certainly shows a legislative understanding of the law, as generally applied to arrests, and may come in aid of other considerations, supposing the question not to have been settled in this commonwealth.
Supposing, therefore, there be no settled practice in this commonwealth, although an execution returned unsatisfied by the sheriff of the county where the court is held might be here deemed regular to charge the bail upon the practice of the English courts, yet it does not follow that a return by the sheriff who took the bail would not be deemed sufficient.
Indeed for this latter practice there seem to be cogent reasons which in the absence of a positive rule may be argued with effect. The bail are always supposed in law to have the custody of their principal; he may be arrested and imprisoned by them. The issuing of the execution, and the demand by the sheriff thereon for the delivery of the principal, seem most proper in that county where they are supposed to have him in custody and can make an immediate surrender. Such a practice, too, will be in suppression of fraudulent attempts to charge the bail, and in furtherance of general convenience.
Mem. This case afterwards came before the Supreme Court, who held that the execution rightfully issued into Suffolk county. Brown v. Wallace, 7 Mass. 208.
ART. VII.-LAW OF EXECUTORS AND ADMINISTRATORS.
A Treatise on the Law of Executors and Administrators. By EDWARD VAUGHAN WILLIAMS, of Lincoln's Inn, Esq., Barrister at Law. With Notes, and References to the Decisions of the Courts of this country. By FRANCIS J. TRoubat. In two volumes. Philadelphia. R. H. Small. 1832.
THE work of Swinburne on wills is somewhat antiquated, being now about two centuries old, a period of sufficient length to make obsolete, not only the style and mode of treating almost any legal subject in a text book, but also a great deal of the law that constitutes its subject. Roberts's treatise on the same subject, made in 1815, though a very respectable work, is by no means the most methodically arranged, and skilfully and thoroughly executed. Mr. Lowndes's treatise on legacies, published in 1824, does not hold a very high rank; but Roper's treatise, remoulded and enlarged, partly by the original author, and partly by Mr. White, in the edition of 1828, is a very able work. But still much remained to be done in a work on wills as far as this subject is not covered by the treatises of Roper on legacies, and Powell on devises; subjects which are comprehended under the title wills. Mr. Williams has recently published the work, which we are going to notice, which covers that part of the title of wills not comprehended in the work of Powell. The American edition, which followed very quickly upon the English, is put out under the superintendence of Mr. Troubat, who has added notices of the American law on the subjects treated of in the text. In a prefatory advertisement Mr. Troubat says:
'The author of the following highly finished and extensive treatise has not addressed any thing by way of preface to the profession in England, in relation to his motives or design in compiling it. But every lawyer who will compare this treatise with previous works on the same subject, must readily discern its superior value and merit. To avoid detaining from the profession in this country a work so long needed and desiderated, it was committed to the printer almost immediately after its arrival here, and the editor was induced to undertake the task of annotating it during its progress through the press. When it is mentioned that