Re: [tips_and_tricks] Re: Is Connecticut still in the union?
- This might explain how we have all been referred to the private commission decreed by the legislature, which looks and feels like a private law ystem run by the State bar.
As a matter of fact, the only bail I have ever been required to post in a civil action was a bond for $1 after I obtained a TRO.
As a matter of law, special bail is required in civil actions.
The conclusion is that someone else is putting in the special bail.
And that someone is this State or an agency of this State like the State bar.
It is putting in this special bail for our benefit.
It might be doing this as the universal trustee of parens patriae.
If your purpose were to refer all law merchant cases in common law to a referee designated by the legislature, as part of a general scheme of social insurance, something like the State bar would be required to enforce uniformity of conviction on counsel. Likewise, prepaid special bail would be required to enable the court to compel those who chose their own counsel into the jurisdiction. Having accepted the benefit of the prepaid special bail, they are bound to its terms. The responsible person then is surety to the court for the special bail. The responible person is you in your natural character or capacity.
But, the bottom line is either special bail has been abolished, for which someone could find a statute if it's true, or special bail has been put in silently.
If this is so, a notice of rejection of the benefit of special bail, on the ground of the maxim of law that no one may be compelled to accept a benefit, filed in the action would either cause your arrest or dismissal from the court for want of jurisdiction.
Perhaps the best criterion of the maritime character of a contract is the system of law from which it arises and by which it is governed. And it is well known that the contract of insurance sprang from the law maritime, and derives all its material rules and incidents therefrom. It was unknown to the common law; and the common law remedies, when applied to it, were so inadequate and clumsy that disputes arising out of the contract were generally left to arbitration, until the year A. D. 1601, when the statute of 43 Elizabeth was passed creating a special court, or commission, for hearing and determining causes arising on policies of insurance. The preamble to that act, after mentioning the great benefit arising to commerce by the use of policies of insurance, has this singular statement: 'And whereas, heretofore such assurers have used to stand so justly and precisely upon their credits as few or no controversies have arisen thereupon, and if any have grown the same have, from time to time, been ended and ordered by certain grave and discreet merchants appointed by the lord mayor of the city of London, as men, by reason of their experience, fittest to understand and speedily to decide those causes, until of late years that divers persons have withdrawn themselves from that arbitrary course, and have sought to draw the parties assured to seek their moneys of every several assurer by suits commenced in her majesty's courts, to their great charges and delays.' The commission created by this act was to be directed to the judge of the admiralty for the time being, the recorder of London, two doctors of the civil law, and two common lawyers, and eight grave and discreet merchants. The act was thus an acknowledgment of the jurisdiction to which the case properly belonged. Had it not been for the jealousy exhibited by the common law courts against the court of admiralty, in prohibiting its cognizance of policies of insurance half a century before,70 the
70 4 Institutes, 139.
latter court, as the natural and proper tribunal for determining all maritime causes, would have furnished a remedy at once easy, expeditious, and adequate. It was only after the common law, under the influence of Lord Mansfield and other judges of enlightened views, had imported into itself the various provisions of the law maritime relating to insurance, that the courts at Westminster Hall began to furnish satisfactory relief to suitors. And even then, as remarked by Sir W. D. Evans, 'the inadequacy of the existing law to settle, proprio vigore, complicated questions of average and contribution, is very manifest and notorious. Such questions are, by consent, as matter of course, and from conviction of counsel that justice cannot be attained in any other way, referred to private examination; but a law can hardly be considered as perfect which is not possessed of adequate powers within itself to complete its purpose, and which requires the extrinsic aid of personal consent.'71 The contrivances to which Lord Mansfield resorted to remedy in a measure these difficulties are stated by Mr. Justice Parke in the introduction to his work on insurance.
New England Mut. Marine Ins. Co. v. Dunham
BAIL, practice, contracts. By bail is understood sureties, given according
to law, to insure the appearance of a party in court. The persons who become
surety are called bail. Sometimes the term is applied, with a want of
exactness, to the security given by a defendant, in order to obtain a stay
of execution, after judgment, in civil cases., Bail is either civil or
2.- 1. Civil bail is that which is entered in civil cases, and is
common or special bail below or bail above.
3. Common bail is a formal entry of fictitious sureties in the proper
office of the court, which is called filing common bail to the action. It
is in the same form as special bail, but differs from it in this, that the
sureties are merely fictitious, as John Doe and Richard Roe: it has,
consequently, none of, the incidents of special bail. It is allowed to the
defendant only when he has been discharged from arrest without bail, and it
is necessary in such cases to perfect the appearance of the defendant.
Steph. Pl. 56, 7; Grah. Pr. 155; Highm. on Bail 13.
4. Special bail is an undertaking by one or more persons for another,
before some officer or court properly authorized for that purpose, that he
shall appear at a certain time and place, to answer a certain charge to be
exhibited against him. The essential qualification to enable a person to
become bail, are that he must be, 1. a freeholder or housekeeper; 2. liable
to the ordinary process of the court 3. capable of entering into a contract;
and 4. able to pay the amount for which he becomes responsible.
1. He must be a freeholder or housekeeper. (q. v.) 2 Chit. R. 96; 5
Taunt. 174; Lofft, 148 3 Petersd. Ab. 104.
2. He must be subject to the ordinary process of the court; and a
person privileged from arrest, either permanently or temporarily, will not
be taken. 4 Taunt. 249; 1 D. & R. 127; 2 Marsh. 232.
3. He must be competent to enter into a contract; a feme covert, an
infant, or a person non compos mentis, cannot therefore become bail.
4. He must be able to pay the amount for which he becomes responsible.
But it is immaterial whether his property consists of real or personal
estate, provided it be his own, in his own right; 3 Peterd. Ab. 196; 2 Chit.
Rep. 97; 11 Price, 158; and be liable to the ordinary process of the law; 4
Burr. 2526; though this rule is not invariably adhered to, for when part of
the property consisted of a ship, shortly expected, bail was permitted to
justify in respect of such property. 1 Chit. R. 286, n. As to the persons
who cannot be received because they are not responsible, see 1 Chit. R. 9,
116; 2 Chit. R. 77, 8; Lofft, 72, 184; 3 Petersd. Ab. 112; 1 Chit. R. 309,
5. Bail below. This is bail given to the sheriff in civil cases, when
the defendant is arrested on bailable process; which is done by giving him a
bail bond; it is so called to distinguish it from bail above. (q. v.) The
sheriff is bound to admit a man to bail, provided good and sufficient
sureties be tendered, but not otherwise. Stat. 23 H. VI. C. 9, A. D. 1444; 4
Anne, c. 16, Sec. 20; B. N. P. 224; 2 Term Rep., 560. The sheriff, is not,
however, bound-to demand bail, and may, at his risk, permit the defendant to
be at liberty, provided he will appear, that is, enter bail above, or
surrender himself in proper time. 1 Sell. Pr. 126, et seq. The undertaking
of bail below is, that the defendant will appear or put in bail to the
action on the return day of the writ.
6. Bail above, is putting in bail to the action, which is an appearance
of the defendant. Bail above are bound either to satisfy the plaintiff his
debt and costs, or to surrender the defendant into custody, provided
judgment should be against him and he should fail to do so. Sell. Pr. 137.
7. It is a general rule that the defendant having been held to bail, in
civil cases, cannot be held a second time for the same cause of action.
Tidd' s Pr. 184 Grah. Pr. 98; Troub. & Hal. 44; 1 Yeates, 206 8 Ves. Jur.
594. See Auter action Pendent; Lis pendens.