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pearance before the King at West- iff, in the mayor's court. A suit minster on the day named in the was brought against T. and D. on writ; held to be a substantial com- the bail bond, in which T. was arpliance with the statute 23 H. 6. C. rested, and D. returned not found. 9. so as to entitle the assignee of The plaintiff having obtained a judgthe sheriff to recover on such bond. ment by default, against both deJones v. Stordy. 9 East, 55.

fendants brought an action of debt 43 To debt on a bail bond, it is no good on that judgment in this court, to

plea that the action was brought by which D. plead nul tiel record, and the sheriff for the benefit of and as T. suffered judgment by default. It trustee for the sheriff's officer, was held, that the judgment in the who arrested the defendant, and to mayor's court, being in form against whom the defendant, paid the debt T. and D., the plaintiff was entitled and costs, &c. after

the return day, to judgment against both, on the but, before the sheriff was ruled to re- plea of nul tiel record. Dando and turn the writ, and who accepted the Dando y. Doll and Tremper. 2 money so paid by the defendant in

Johns. Rep. 87. full satisfaction and discharge of the 47 Where the plaintiff takes an asbail bond and fees, &c.; and that if a- signment of the bail bond, and brings ny damage were afterwards incur- an action against the principal and red for default of the defendant's ap- the bail to the arrest, and obtains a pearance according to the condition judgment, and issues an execution, of the bond, it was occasioned by he cannot afterwards file common the default of such sheriff's officer bail in the original suit, and proin not paying over the debt and ceed to judgment thereon; but is costs to the plaintiff in the original concluded by his election to proceed action, which would have been ac- on the bail bond. Beecker v. Sim. cepted by such plaintiff, &c. : for it

7 Johns. Rep. 119. does not thereby appear that the 48 Where bail taken in a court of *sheriff's officer had either a legal common pleas, remove out of the or an equitable interest (even sup- county, an action may be brought posing the latter would have suffi- in this court on the recognizance. eed) in the bond at the time of the Davis v. Gillet and another. supposed satisfaction received by Johns. Rep. 318. such officer; and supposing that aecord and satisfaction could be plead- III. Scire Facias, or other Proceedings ed to such a bond, not for money, but,

against Bail. for a collatteral act; and supposing that it could be so pleaded after 1 If principal defendant dies after the day stipulated for the perform- the return of the ca. sa. although his ance of the aet. Scholey and Dam- death before the suing forth the first

ville v. Mearns. East, 148. sci. fa. the bail are fixed with the 44 Bail was holden, notwithstanding debt and costs in point of law, and

the execution against the principal the sci. fa. are only an indulgence was made returnable at an earlier of the court. Filewood v. Poppleday than by law it should have wood and Turner. 2 Wils. 65. been. Ranlet v. Warren. 7 Mass. 2 Scire facias against bail after exon477.

eretur ordered to be entered, though 43 After the special bail is put in, not actually done, irregular. Bond

the plaintiff, if he is dissatified with v. Isaac. i Burr. 409. it, must except to it, and cannot pro- 3 A scire facias may be sued out a. reed on the bail bond. Ferris y. gainst bail on the day on which the Phelps. 1 Johns. Cas. 249.

capias ad satisfaciendum against the 46 T. became bail for D. to the sher. principal is returnable, and bear

mons.

teste on that day. James, Stewart, 13 Where the defendant was sued by and others v. Smith and others, bail original in London, the scire facias of Ranger. 2 L. Raym. 1567. 2 against the bail must be sued thero Str. 866.

also : and it does not help the plain4 Scire facias against bail in error tiff who sued out the scire facias in

of a judgment in the cominon pleas Middlesex, that bail had by mistake must be to shew cause why the been put in there. Harris v. Calplaintiff should not have execution vart. 1 East, 603. of the debt aforesaid, and not dam- 14 The scire facias against bail must ages.

Barlow y. Evans. 1 Wils. lie four days in the office, as well 98.

where scire

feci is returned as nihil. 5 Sci. fa. against bail may be sued Williams v. Mason. 1 East, 89, n.

out after a ca. sa. returned, though 15 If the second writ of scire facias not regularly filed, and short notice be in

proper

time on the file in the to the bail is immaterial. Hunt v. sheriff's office, that is sufficient to

Core. 3 Burr. 1360. 1 Black. 393. warrant proceedings against the 6 Sci. fa. on recognizance of bail bail, though it were not entered in

taken in London, and enrolled at the scire facias book in the sheriff's Westminsier as so taken, may be office, which is merely a private sued either in London or Middlesex, book for his own convenience. HeyKenny v. Thornton. 2 Black. 768. wood v. Rennard. 3 East, 570.

Proceedings against the bail to an 16 The court set aside the proceedaction shall not be stayed on ac- ings in scire facias against bail, becount of the death of the principal, cause they were suminoned only an if he was alive at the return of the hour before the court rose on the capias ad satisfaciendum. Parry v. return day. And the sheriff's reBerry. 2 L. Rayn. 1452.

2 Str.

turn of scire feci does not estop the 717. 1 Str. 511. Glyn v. Yates.

bail from shewing that they were 8 Bail who have neglected to sur- sunumoned so late on the return

render may have execution stayed day, that they could not bring in till after affirmance of the principal their principal before the rising of judgment. Cole v. Buckland. the court. Webb v. Harvey. 2 Str. 872.

Terin Rep. 757. Pool Wiis. 2 9 Where no bail in error is requir- Term Rep. 758, n.

ed, the bail applying to stay pro- 17 But by the settled practise of the ceedings must undertake for the court, it is sufficient if the bail be costs on the writ of error. Rifton summoned any time before the ris

v. Francis, bail of Nash. 2 Str. 877. ing of the court on the return day. 10 Upon removal by habeas corpus,

Clarke v.

Bradshaw. 1 East, 86. the court will examine into the And there is a inistake in the report cause of action. Lumley v. Quarry. of the case of Webb v. Harvey, in 1 Sall. 101.

stating the notice to the bail to have 11 For defendant shall not be excused been before, as in fact it was not

from giving special bail, on a sug. served till after, the rising of the gestion that the action is brought court. 1 East, 88, 9. for something done by him in a ju- 18 The plaintiff may sue out a writ dicial capacity. 2 L. Raym. 767. against the bail on their recogniz(And see AMENDMENT IL)

ance, on the return day of the ca. 12 When there is only one scire facias sa. against the principal. Shivers

against bail, and the proceedings v. Brooks. 8 Term Rep. 628. are by bill, there need be only four 19 The court of C. P. set aside prodays exclusive between the teste and ceedings against bail, because the return of it. Bell y. Jackson. 4 ca. sa. was tested of a term prior to Term Rep. 663.

that in which judgment was signed

2

V.

against the principal. Gawler v. who intended to be bail, and who in Jolly. 1 H. Black. 74.

fact, appeared before the judge who 20 But it is immaterial the capias ad signed the acknowledgment on the

respondendum against the ball being bail pieee. The plea was held tested of a day prior to the return of good, and the evidence competent the ca. sa. against the principal, if to support the plea, on the issue in fact it be not sued out till after. joined, as to the indentity of the Pinero v. Wright. 2 Bos. & Pull. person. Renoard y. Noble. 2 Johns. 235,

Cas. 293. 21. By the final judgment mentioned 26 Bail to the sheriff are responsible

in the statute of 1781 c. 10. s. 3. only for the principal and interest within one year from which scire due on the bond in the original suit, facias must be served upon bail, is and not for any matter dehors the intended the first judgment on which condition for which the penalty is the plaintiff may sue out an execu- claimed as security. Treaduell v. tion; whether such judgment be M Keel and others. 2 Johns. Cas. rendered in the common pleas or in 310, this court; and a judgment on re- 27 Before a suit can be commenced view is not intended. Swett et al. against bail, a ca. sa. or test. ca. sa. v. Sullivan. Mass. 342.

against the principal must be sued 22 Where the proceedings against bail out, and actually returned with non

were irregular; but they suffered es nuentus endorsed thereon, and two terms to elapse, after a know- filed in the clerk's office. Pearsall ledge of the irregularity, before v. Lawrence and Doé. 3 Jolins. they applied to set aside the pro- Rep. 514. ceedings, the motion was denied, as coming too late. Jones v. Dunning

IV. Surrender of Principal. and Doe. 2 Johns. Cas. 74. 23 Where the plaintiff agreed to stay i On a recognizance to render in an

the proceedings in a bail bond suit, inferior court, if the proceedings on payment of costs, the original are removed into K. B. the render suit having been settled, and the de- may be there. Freshwater y. Eaton. fendant neglecting to pay the costs, 1 Str. 49. the plaintiff proceeded in the bail 2 The bail of a convict allowed to hond suit, the court refused to set surrender in discharge of themaside the proceeding, as the plain- selves. Case of the bail of Peter tift had no other way of obtaining Vergen. 2 Str. 1217. his costs. Campbell v. Grove. 2 3 Two days' notice of render ought Johns. Cas. 105.

to be given to discharge bail. Ly: 2. On an application to set aside a ell v. Manucapt. Galletly. 1 Salk.

default for not pleading bail are 101. pot entitled to any peculiar indul- 4 The king's debtor may be brought gence. Gorham v. Lansing and Doe. up and surrendered in a civil suit. 2 Johns. Cas. 107.

T'he case of the buil of Boise and Sel23 In an action of scire facias against lers. 1 Str. 641. bail, the defendant pleaded that an- 5 Bail must render the principal in person

of the same name and discharge of themselves the quirto description became bail, and travers- die of the return of the second scire ed that he was the same person facias sedente curia, or they come named in the bail piece. It was too late afterwards, even the same proved at the trial, that the name day. Simmonds v. Middleton and of Elnathan Noble, the defendant, others. 1 Wils. 269. tas inserted in the bail piece; but 6 Bail have time to surrender printhat Stephen Norton was the persou cipal till quarto die post. when at

other

man.

tion by original. Bailey v. Smeath- Mitchell v. Morris. 2 Black. 1179. 4 Burr. 2131.

Jackson v. Trinder. Ibid. 1180,758. Debt lies against bail upon their 17 Attorney may be special bail, in recognizance. Proceedings shall order to surrender, but cannot justi. be stayed in such action on a ren- fy. Jackson v. Trinder. Ib. 1180. der of the principal within eight 18 But bail surreptitiously put in, are days in full term after the return as no bail, and cannot surrender. of the process.

Miller r. Petit. 1 Jackson v. Morris. Richardson v. L. Rayinond, 720.

Morris. 2 Black. 1179. 8 On surrender, bail will not be dis- 19 Sheriff's bail cannot take the decharged unless they enter a commit- fendant on a Sunday in order to surtitur in the office. Such committi- reuder her. Brooks v. Warren. 2 tur cannot be entered after the Black. 1273. death of the principal, though he (And see ATTACHMENT I. PRACwas actually surrendered and cus

TICE III.) tody while alive. Ward v. Griffith. 20 Bail may render the principal be1 L. Raymond, 83.

fore the return of a rule against the 9 Render before return of the latitat sheriff to bring in the body, before

not pleadable to an action on a re- they have justified, giving notice of cognizance of bail. Anonymous. 1 such surrender to the plaintiff's atSalk. 101.

torney. Reg. Gen. 5 Term Rep. 638. 10 The rendering is a discharge in (See Hall v. Walker. 1 H. Black

posse as to bail in three different ac- 368.) tions, but not complete and actual 21 So they may render the principal till exon. entered. Williams r. after an assignment of the bail boud, IVilliams. 1 Salk. 98.

though they have not justified. Ed. 11 Bail shall have time to surren- win v. Allen. 5 Terin Rep. 401.

der principal after writ, of error 22 Bail sued on their recognizance by brought by him. Capron v. Archer. attachment of privilege, may render 1 Burr. 340.

the principal on the appearance 12 If an action is commenced against day of the return. Fletcher v, Jin

bail by a wrong process, it does not geil. 2 H. Rlack. 117. prevent lis rendering the principal. But the surrender must be before the Hoare v. Mingay, one, fc. 2 Str. rising of the court. Lardner v. Bas915.

sage. 2 H. Black. 593. 13 Person listed surrendered by his 23 'The court will not enlarge the time

bail in their own discharge. Bond for bail to render their principal, v. Isaac. i Burr. 339.

on the ground that he could not be 14 Render in discharge of bail in an removed without endangering his

action will not discharge the bail life. Winn v. Petty. 4 East, 102. on an indictment. Anonymous. 1 Nightingale v. Lowry, cited. Salk. 103.

East, 102. 15 The recognizance of bail is for. 24 Nor on the ground of the unwar

feited by the return of non est inven- rantable arrest and detention of the tus on the ca. sa, but if a render is principal by a foreign enemy. made before the court rises on a re- Grant v. Fagan. 4 East, 189. turn day of the last sci. fa. the court 25 For the bail are not excused from will stay the proceedings against the the performance of the condition of bail, though they may have accept- the bond, merely because the render ed the declaration, but such tender has become impossible without any cannot be pleaded. Wilmore v. default of theirs; but only when it

Clerk f Howard. 1 L. Raym. 156. has become so, by the act or law of 16 Bail who immediately surrender onr own state. 4 East, 190.

the principal need not justify. 26 But it seeins the court would enlarge the time of render, in order 32 So the court of K. B. held that that the examination of the principal, though one bail only had justified, a bankrupt, might be previously com- and time had been refused to justipleted; no prejudice ensuing there- fy another, they were competent to from to the plaintiff. Maude v. surrender. Anonymous. New Rep. Jowett. 3 East, 145.

138, n. 27 Proceedings may be stayed on a 33 And that even bail rejected while

bail bond, on payment of costs, on the bail piece are competent to though the bail surrender the prin- surrender. Ibid. eipal without having justified. Mey- 34 But the court of C. P. held that sey v. Carnell. 5 Term Rep. 534. bail rejected are no bail, and cannot 28 Bail who are excepted to, and do surrender. Mills v. Head. New

not justify on the day appointed, Rep. 137. cannot afterwards surrender the 35. If the defendant, who has given a principal, being thereby out of court; bail bond, surrender himself to the but the defendent being, in point of sheriff before the return of the writ, fact, in custody before the assign- the bail bond may be given up, and ment of the bail band, the court of it will be considered as if no such K. B. set aside proceedings on pay- bond liad been given. Jones v. Lanment of costs. Hardwick v. Bluck. der. 6 Term Rep. 753. 7 Term Rep. 297.

36 But he must give notice of such 29 If the principal be surrendered in surrender. Maddocks et al. v. Bull

time, though the bail omit to give cock. 1 Bos. of Pull. 323.
regular notice of it to the plaintiff, 37 And it is optional with the sheriff
iu consequence of which he pro- whether or not he will accept the
ceeds upon the bail "bond, the bail surrender, in discharge of the bail
may apply to set aside the proceed- bond, before the return of the writ.
ings on payment of costs even after 1 East, 383. (See Hamilton v. Wil.
execution levied, and the

money
is

East, 383, tit. SHERIFF I.) in the sheriff's hands. Lepine et al. 38 Where a plaintiff being arrested,

v. Barratt. 8 Term Rep. 222. has remained some time in custody, 30 If 1. being arrested by B. on pro- and then a bail bond has been tak

cess of C. P. give bail to the sheriff, en, it may be cancelled, if the deand before the return of the writ fendant return into the sheriff's cusbeing again arrested by C. is com- tody before the return of the writ. mitted to the Fleet prison, after Stamper v. Millbourne. Term whieh B. takes an assignment of

Rep. 122. the bail bond, and proceeds thereon, 39 Bail above may be put in, and the the court will stay such proceedings; principal be surrendered before the but will not make B. pay costs, for return of the writ, and the plaintiff they will not try upon affidavit cannot afterwards proceed on the whether he knew or not that A. was bail bond. Hyde v. Whiskard. 8 in custody, but will consider him ig. Term Rep. 456. norant of that fact, unless notice of 10 But see Huggins v. Bambridge, and surrender bas been regularly given.

Newton v. Lewis. 8 Term Rep. Harding v. Hennein. 3 Bos. Pull. 457, 8, n, 232.

41 The court, on the application of 31 If on exception to bail notice be the defendant's bail, granted a ha

given of other bail, only one of beas corpus to the sheriff of H. in whom justifies, and the names of whose custody the defendant was the former still remain on the bail under a charge of fellony, to bring piree, such former may surrender him up, in order that he might be the principal. R. v. The Sheriff of surrendered by his bail. Sharpy, Eseex, 5 Term Rep. 633,

Sheriff. 7 Term Rep. 2?i,

SON.

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