Opinion
Decided June, 1887.
In fixing the bail of a defendant confined in jail on mesne process, such reasonable bail will be required by the court as should be required by the jailer under Gen. Laws, c. 225, s. 14.
PETITION, that a reasonable sum be fixed by the court as bail in each of two suits at law whereupon the defendant was arrested, and having been surrendered by his original bail, is now detained in jail. Facts found by the court.
D. Cross and Briggs Huse, for the petitioner.
Sulloway Topliff and J. H. Andrews, plaintiffs in the suit.
If it appears that a person is imprisoned on mesne process for want of bail, and that excessive bail is required, the court may decide what bail is reasonable, and he shall, on giving it, be discharged. G. L., c. 243, ss. 6, 24.
The applicant in this case is imprisoned on mesne process, and the question arises whether the bail required is excessive, and that proposed by him sufficient. The statute is, that an officer, on making an arrest on mesne process, shall commit the party to jail unless one or more persons of sufficient ability, to the officer's satisfaction, shall become his bail; and if such bail before judgment shall surrender the principal in court, he shall be detained in jail, unless one or more persons of sufficient ability, to the satisfaction of the jailer, shall rebail him. G. L., c. 225, ss. 13, 14. The bail taken in this form does not fix an absolute liability, but a dependent one. G. L., c. 225, s. 16; c. 242, ss. 1, 2, 5. The officer or jailer has not only a right, but it is a duty, in the cases supposed, to require reasonable bail. Gerrish v. Edson, 1 N.H. 82; Evans v. Foster, 1 N.H. 374; Gordon v. Edson, 2 N.H. 152; Atherton v. Gilmore, 9 N.H. 185, 187.
The bail offered by the applicant is not that of one or more persons of sufficient ability, to the reasonable satisfaction of the keeper of the jail, but that of a few persons of limited means, provided the court will fix it at a comparatively small sum. This does not bring the applicant within the statute. The bail the court can fix is the reasonable bail which the jailer should take.
Petition dismissed.
ALLEN, J., did not sit: the others concurred.