pearance before the King at Westminster on the day named in the writ; held to be a substantial compliance with the statute 23 H. 6. c. 9. so as to entitle the assignee of the sheriff to recover on such bond. Jones v. Stordy. 9 East, 55. 43 To debt on a bail bond, it is no good plea that the action was brought by the sheriff for the benefit of and as trustee for the sheriff's officer, who arrested the defendant, and to whom the defendant, paid the debt and costs, &c. after the return day, but, before the sheriff was ruled to return the writ, and who accepted the money so paid by the defendant in full satisfaction and discharge of the bail bond and fees, &c.; and that if any damage were afterwards incurred for default of the defendant's appearance according to the condition of the bond, it was occasioned by the default of such sheriff's officer in not paying over the debt and costs to the plaintiff in the original action, which would have been accepted by such plaintiff, &c. : for it does not thereby appear that the sheriff's officer had either a legal or an equitable interest (even supposing the latter would have sufficed) in the bond at the time of the supposed satisfaction received by such officer; and supposing that accord and satisfaction could be pleaded to such a bond, not for money, but, for a collatteral act; and supposing that it could be so pleaded after the day stipulated for the performance of the act. Scholey and Damville v. Mearns. 7 East, 148. 44 Bail was holden, notwithstanding the execution against the principal was made returnable at an earlier day than by law it should have been. Ranlet v. Warren. 7 Mass.

477.

45 After the special bail is put in, the plaintiff, if he is dissatified with it, must except to it, and cannot proceed on the bail bond. Ferris v. Phelps. 1 Johns. Cas. 249. 46 T. became bail for D. to the sher

iff, in the mayor's court. A suit was brought against T. and D. on the bail bond, in which T. was arrested, and D. returned not found. The plaintiff having obtained a judg ment by default, against both defendants brought an action of debt on that judgment in this court, to which D. plead nul tiel record, and T. suffered judgment by default. It was held, that the judgment in the mayor's court, being in form against T. and D., the plaintiff was entitled to judgment against both, on the plea of nul tiel record. Dando and Dando v. Doll and Tremper. 2 Johns. Rep. 87.

47 Where the plaintiff takes an assignment of the bail bond, and brings an action against the principal and the bail to the arrest, and obtains a judgment, and issues an execution, he cannot afterwards file common bail in the original suit, and proeeed to judgment thereon; but is concluded by his election to proceed on the bail bond. Beecker v. Simmons. 7 Johns. Rep. 119. 48 Where bail taken in a court of common pleas, remove out of the county, an action may be brought in this court on the recognizance. Davis v. Gillet and another. Johns. Rep. 318.

III.

7

If principal defendant dies after the return of the ca. sa. although his death before the suing forth the first sci. fa. the bail are fixed with the debt and costs in point of law, and the sci. fa. are only an indulgence of the court. Filewood v. Popplewood and Turner. 2 Wils. 65.

Scire facias against bail after exoneretur ordered to be entered, though not actually done, irregular. Bond v. Isaac. 1 Burr. 409.

A scire facias may be sued out a gainst bail on the day on which the capias ad satisfaciendum against the principal is returnable, and bear

teste on that day. James, Stewart, and others v. Smith and others, bail of Ranger. 2 L. Raym. 1567. 2 Str. 866.

4 Scire facias against bail in error of a judgment in the common pleas must be to shew cause why the plaintiff should not have execution of the debt aforesaid, and not damages. Barlow v. Evans. 1 Wils.

98.

5 Sci. fa. against bail may be sued out after a ca. sa. returned, though not regularly filed, and short notice to the bail is immaterial. Hunt v. Coxe. 3 Burr. 1360. 1 Black. 393. 6 Sci. fa. on recognizance of bail taken in London, and enrolled at Westminsier as so taken, may be sued either in London or Middlesex. Kenny v. Thornton. 2 Black. 768. 7 Proceedings against the bail to an action shall not be stayed on account of the death of the principal, if he was alive at the return of the capias ad satisfaciendum. Parry v. Berry. 2 L. Raym. 1452.

2 Str. 717. 1 Str. 511. Glyn v. Fates. 8 Bail who have neglected to surrender may have execution stayed till after affirmance of the principal judgment. Cole v. Buckland. Str. 872.

2

9 Where no bail in error is required, the bail applying to stay proceedings must undertake for the costs on the writ of error. Rifton v. Francis, bail of Nash. 2 Str. 877. 10 Upon removal by habeas corpus, the court will examine into the cause of action. Lumley v. Quarry. 1 Salk. 101.

11 For defendant shall not be excused from giving special bail, on a suggestion that the action is brought for something done by him in a judicial capacity. 2 L. Raym. 767. (And see AMENDMENT II) 12 When there is only one scire facias against bail, and the proceedings are by bill, there need be only four days exclusive between the teste and return of it. Bell v. Jackson. 4 Term Rep. 663.

13 Where the defendant was sued by original in London, the scire facias against the bail must be sued there also: and it does not help the plaintiff who sued out the scire facias in Middlesex, that bail had by mistake been put in there. Harris v. Calvart. 1 East, 603.

14 The scire facias against bail must lie four days in the office, as well where scire feci is returned as nihil. Williams v. Mason. 1 East, 89, n. 15 If the second writ of scire facias be in proper time on the file in the sheriff''s office, that is sufficient to warrant proceedings against the bail, though it were not entered in the scire facias book in the sheriff's office, which is merely a private book for his own convenience. Heywood v. Rennard. 3 East, 570. 16 The court set aside the proceedings in scire facias against bail, because they were summoned only an hour before the court rose on the return day. And the sheriff's return of scire feci does not estop the bail from shewing that they were summoned so late on the return day, that they could not bring in their principal before the rising of the court. Webb v. Harvey. Term Rep. 757. Pool v. Wills. 2 Term Rep. 758, n.

2

17 But by the settled practise of the court, it is sufficient if the bail be summoned any time before the rising of the court on the return day. Clarke v. Bradshaw. 1 East, 86. And there is a mistake in the report of the case of Webb v. Harvey, in stating the notice to the bail to have been before, as in fact it was not served till after, the rising of the court. 1 East, 88, 9.

18 The plaintiff may sue out a writ against the bail on their recognizance, on the return day of the ca. sa. against the principal. Shivers v. Brooks. 8 Term Rep. 628. 19 The court of C. P. set aside proceedings against bail, because the ca. sa. was tested of a term prior to that in which judgment was signed

tion by original. Bailey v. Smeathman. 4 Burr. 2134.

Debt lies against bail upon their recognizance. Proceedings shall be stayed in such action on a render of the principal within eight days in full term after the return of the process. Miller v. Petit. 1 L. Raymond, 720.

8 On surrender, bail will not be discharged unless they enter a committitur in the office. Such committitur cannot be entered after the death of the principal, though he was actually surrendered and custody while alive. Ward v. Griffith. 1 L. Raymond, 83.

9 Render before return of the latitat not pleadable to an action on a recognizance of bail. Anonymous. 1 Salk. 101.

10 The rendering is a discharge in posse as to bail in three different actions, but not complete and actual till exon. entered. Williams v. Williams. 1 Salk. 98.

11 Bail shall have time to surrender principal after writ, of error brought by him. Capron v. Archer. 1 Burr. 340.

12 If an action is commenced against bail by a wrong process, it does not prevent his rendering the principal. Hoare v. Mingay, one, &c. 2 Str.

915.

13 Person listed surrendered by his bail in their own discharge. Bond v. Isaac. 1 Burr. 339. 14 Render in discharge of bail in an action will not discharge the bail on an indictment. Anonymous. 1 Salk. 105.

15 The recognizance of bail is for

feited by the return of non est inventus on the ca. sa. but if a render is made before the court rises on a return day of the last sci. fa. the court will stay the proceedings against the bail, though they may have accepted the declaration, but such tender cannot be pleaded. Wilmore v. Clerk & Howard. 1 L. Raym. 156. 16 Bail who immediately surrender the principal need not justify.

Mitchell v. Morris. 2 Black. 1179. Jackson v. Trinder. Ibid. 1180, 758. 17 Attorney may be special bail, in order to surrender, but cannot justi fy. Jackson v. Trinder. Ib. 1180. 18 But bail surreptitiously put in, are as no bail, and cannot surrender. Jackson v. Morris. Richardson v. Morris. 2 Black. 1179.

19 Sheriff's bail cannot take the defendant on a Sunday in order to surreuder her. Brooks v. Warren. 2 Black. 1273.

(And see ATTACHMENT I. PRACTICE III.)

20 Bail may render the principal before the return of a rule against the sheriff to bring in the body, before they have justified, giving notice of such surrender to the plaintiff's attorney. Reg. Gen. 5 Term Rep. 638. (See Hall v. Walker. 1 H. Black. 368.)

21 So they may render the principal after an assignment of the bail boud, though they have not justified. Edwin v. Allen. 5 Term Rep. 401. 22 Bail sued on their recognizance by attachment of privilege, may render the principal on the appearance day of the return. Fletcher v. Aingell. 2 H. Rlack. 117. But the surrender must be before the rising of the court. Lardner v. Bassage. 2 H. Black. 593.

23 The court will not enlarge the time for bail to render their principal, on the ground that he could not be removed without endangering his life. Winn v. Petty. 4 East, 102. Nightingale v. Lowry, cited. East, 102.

4

24 Nor on the ground of the unwarrantable arrest and detention of the principal by a foreign enemy. Grant v. Fagan. 4 East, 189. 25 For the bail are not excused from the performance of the condition of the bond, merely because the render has become impossible without any default of theirs; but only when it has become so, by the act or law of our own state. 4 East, 190. 26 But it seems the court would en

large the time of render, in order that the examination of the principal, a bankrupt, might be previously completed; no prejudice ensuing therefrom to the plaintiff. Maude v. Jowett. 3 East, 145. 27 Proceedings may be stayed on a bail bond, on payment of costs, though the bail surrender the principal without having justified. Meysey v. Carnell. 5 Term Rep. 534. 28 Bail who are excepted to, and do not justify on the day appointed, cannot afterwards surrender the principal, being thereby out of court; but the defendent being, in point of fact, in custody before the assignment of the bail bond, the court of K. B. set aside proceedings on payment of costs. Hardwick v. Bluck. 7 Term Rep. 297.

29 If the principal be surrendered in time, though the bail omit to give regular notice of it to the plaintiff, in consequence of which he proceeds upon the bail bond, the bail may apply to set aside the proceedings on payment of costs even after execution levied, and the money is in the sheriff's hands. Lepine et al. v. Barratt. 8 Term Rep. 222. 30 If A. being arrested by B. on process of C. P. give bail to the sheriff, and before the return of the writ being again arrested by C. is committed to the Fleet prison, after which B. takes an assignment of the bail bond, and proceeds thereon, the court will stay such proceedings; but will not make B. pay costs, for they will not try upon affidavit whether he knew or not that A. was in custody, but will consider him ignorant of that fact, unless notice of surrender bas been regularly given. Harding v. Hennem. 3 Bos. & Pull.

232.

31 If on exception to bail notice be given of other bail, only one of whom justifies, and the names of the former still remain on the bail piece, such former may surrender the principal. R. v. The Sheriff of Essex. 5 Term Rep. 633.

32 So the court of K. B. held that though one bail only had justified, and time had been refused to justify another, they were competent to surrender. Anonymous. New Rep. 138, n.

33 And that even bail rejected while on the bail piece are competent to surrender. Ibid.

34 But the court of C. P. held that bail rejected are no bail, and cannot surrender. Mills v. Head. New Rep. 137.

35 If the defendant, who has given a bail bond, surrender himself to the. sheriff before the return of the writ, the bail bond may be given up, and it will be considered as if no such bond had been given. Jones v. Lander. 6 Term Rep. 753.

36 But he must give notice of such surrender. Maddocks et al. v. Bullcock. 1 Bos. & Pull. 325. 37 And it is optional with the sheriff whether or not he will accept the surrender, in discharge of the bail bond, before the return of the writ. 1 East, 383. (See Hamilton v. Wil

son.

1 East, 383, tit. SHERIFF I.) 38 Where a plaintiff being arrested, has remained some time in custody, and then a bail bond has been taken, it may be cancelled, if the defendant return into the sheriff's cus tody before the return of the writ. Stamper v. Millbourne. 7 Term Rep. 122.

39 Bail above may be put in, and the principal be surrendered before the return of the writ, and the plaintiff cannot afterwards proceed on the bail bond. Hyde v. Whiskard. 8 Term Rep. 456.

40 But see Huggins v. Bambridge, and Newton v. Lewis. 8 Term Rep.

457, 8, n,

41 The court, on the application of the defendant's bail, granted a habeas corpus to the sheriff of H. in whose custody the defendant was under a charge of fellony, to bring him up, in order that he might be surrendered by his bail. Sharp y. Sheriff 7 Term Rep. 226,