cognovit by

It was held in E. T. 35 Geo. 3, that the bail were not Bail not disdischarged by the principal's giving a cognovit; and charged by a court refused to grant a rule to enter an exoneretur on defendant. the bail-piece. Hodgson v. Nugent, 6 Term Rep. 277. (a)

A return of non est inventus procured by the plaintiff against the principal, in order to found proceedings against the bail is irregular, if the principal were at the same time in custody of the sheriff who made the return, though at the suit of another person, and the subsequent proceedings will be set aside. Burks v. Maine and another, bail of Renton, 16 East, 2.

How to proceed by Action.

The only difference in the commencement of this action By action. from that of all others by bill is, that the following ac etiam must be inserted in the body of the latitat or other process issued on this occasion, notwithstanding the defendants are not arrested thereon, but only served with copies, viz. in pursuance of R. E. 15 Geo. 2, after the words in a plea of trespass, there shall be inserted the following clause, " and also to the bill of the said A. Ac etiam. "against the said B. in a plea of debt upon recogni"zance, according to the custom of our court, before

86

us to be exhibited." Otherwise the defendant, or his attorney, shall not be bound to accept a declaration in debt upon such recognizance.

If this clause was not inserted, it would be a surprize If not inserted. on the bail, who, not knowing the cause of action, may let slip the time allowed them to surrender the defendant, and thereby discharge themselves. The bail cannot be arrested, let the amount of the debt be what it may.(b)

The rest of the proceedings are the same as in other Venue.

(a) But if plaintiff lays by for a length of time, and does not proceed against the bail, the court will interfere. (b) The writ may be sued out on the return day of the ca. sa. Shivers v. Brooks, 8 Term Rep. 628. Ld. Ray. 1567. 2 Str. 8, 6. and the action may be against all, or several actions against each.

Teste and return of ca. sa.

If plaintiff take the bail in execution, he cannot af

terwards take the principal.

The bail must

pay the costs on the recog

of the actions

nizance, as

well as debt and costs re

covered, although they tender the

original debt and costs before the eight days in which they had to render.

If latitat be

sued out and bail surrender

in due time.

cases, only that the venue is to be laid in Middlesex, Salk. 564, 600, 659. Suing the bail below pending error in parliament, is a contempt and breach of privilege. 1 P. Wil. 685.

A ca. sa. by original must have fifteen days between the teste and return to charge bail. Stat. 13 Car. 2. c. 2. If by bill, eight days are sufficient. Salk. 599. 602. Ld. Ray. 1177.

If the plaintiff sue the bail by action and take them in execution, he cannot afterwards take the principal, though one of the bail become bankrupt, and be discharged, and the other also be discharged on payment of 5s. in the pound, and upon an understanding that the plaintiff was at liberty to proceed against the principal. Allen v. Snow, 1 Maule and Selw. 341.

The bail not being able to surrender before the return of the ca. sa. the plaintiff, before the expiration of the eight days, within which bail are allowed to surrender, proceeded, and delivered a declaration conditionally; the bail offered to pay the original debt and costs, but not the costs against them of this action. Motion, why the proceedings should not be staid on payment of the damages and costs in the original action. Buller, J.-The bail ought to surrender their principal upon the return of the ca. sa.; if they do not, a cause of action accrues against them, and therefore the costs of the declaration delivered in the action against the bail, ought to have been tendered, before they had any ground for applying to this court to stay the proceedings. The allowing of the eight days after the return of the ca. sa. for the bail to surrender, is merely an indulgence given to them by the practice of the court; for they are liable, though the principal die after the return of the ca. sa. Per Cur. Upon payment of the costs in the former action, and the costs in the action against the bail, let the proceedings be staid. Perrigal v. Mellish, 5 Term Rep. 363. 15 East, 254. S. P.

Although a latitat be sued out against bail on the recognizance, if the defendant renders within the eight days, and give notice, and gets bail exonerated, if the plaintiff further proceed, such proceedings will be set aside as irregular. For he does it at his peril, the rule, Trin. 1 Anne, having declared, that on such conditions, all fur

ther proceeding shall cease. Byrne v. Aguitar, 3 East, 306. (a)

Bail having rendered their principal in time according When bail is entitled to a to the practice of the court, are entitled to stay the prostay of proceedings in an action on their recognizance without costs, stedings in an though the plaintiff commenced his action before he was action on their served with notice of the render. Smith v. Lewis, 16 recognizance East, 168. 14 East, 599. 15 East, 254. 1 Maule and without costs. Selw. 742.

The court in Smith and Lewis said, that rule of Trin. 1 Anne, having directed that all proceedings against the bail should cease upon notice of the render, they were entitled to have the proceedings stayed unconditionally.

Time of Render when sued by Action.

IT is ordered, that if any person or persons being, or Time of ren hereafter shall become bail or manucaptors in this court dering the for any defendant in any action whatsoever, and shall be principal, where bail are impleaded by action of debt upon the recognizance in sued on their such suit acknowledged, such person or persons shall have recognizance. liberty to render such defendant into the custody of the marshal of this court by the space of eight entire days in full term, next after the return of the writ of latitat, or other process, sued out against such bail, and upon notice thereof given to the plaintiff or his attorney (in the suit aforesaid, all further proceedings against such bail or manucaptors upon the recognizance aforesaid, shall cease. R. Trin. 1 Anne.

If there be but four days in term after the return of the If four days writ of latitat, or bill of Middlesex, in an action against in term. the bail, the defendant shall have eight entire days in the next term to render. The case in 1 Ld. Raym. 721, was before the above rule, where it was ruled otherwise, Vide further on, title Render.

It is ordered, that where the plaintiff declares for, or recovers a greater sum than is expressed in the which he declares, the bail shall not be discharged, but

process on

Bail liable for

so much as in the affidavit, though the plaintiff de-. clares for, or

recovers more

(a) By this rule if bail are impleaded in debt on the than in the recognizance, they shall have eight days to render the process. defendant, and on notice thereof all further proceedings

shall cease.

Explanation.

If error allowed.

Proceedings by sci. fa. against bail by bill.

be liable for so much as is sworn to, and indorsed on the said process, or for any lesser sum which the plaintiff in such action shall recover. R. E. 5 Geo. 2. 6 East, 312. So ruled, though less than the sum acknowledged to be due, as well where the action is by original, as by bill. Jacob v. Gowes.

By this rule, no person being bail in court, or before a judge, shall, upon a recovery against the defendant, be answerable for any greater sum or sums than sworn to or indorsed on the writ or process on which the defendant was arrested (although one part of the condition of the recognizance is to pay the whole condemnation money, if the defendant does not:) and if a greater sum be recovered, he shall not be discharged, but shall be liable for such sum or sums as shall be sworn to, or indorsed, or any lesser sum that shall be recovered against the defendant in such action wherein he became bail, together with costs of suit. N. on the above rule. And the court in this cause, on motion, staid proceedings on the recognizance, on payment of the debt sworn to, and costs. Jackson v. Hassel, Doug. 330. See 1 East, 86, S. P. contra C. P.

Where a writ of error is allowed before the expiration of the time given to the bail to render their principal, they may stay the proceedings against them, pending the writ of error, or undertaking to pay the damages re covered, or to surrender the defendant within four days of the determination of the writ, if determined in favour of the original plaintiff. 11 East, 316. Sprang v. Mon privatt, sed vide 1 N. R. 67 in C. P.

How to proceed by Scire Facias.

THE regular mode of proceeding against the bail by sci. fa. by bill is, first get the bail-piece from the judge's chambers (if not already taken away), and take the same to Messrs. Provost and Chambre, who file it, pay them 4d. per term. But if the bail be justified in court, then get the same of the master's clerk, pay him ls. and file it with Provost and Chambre (copy it first,) and only proceed against those that justified (if there are more on the bail-piece,) as they who did not justify may get leave to be exonerated nunc pro tune. 4 Burr. 2107. Humphrey v. Leite. Then enter upon the roll, the declaration and recognizance of bail, with a memorandum of the term the declaration is of, which is to be docketed and filed in the

treasury chamber: in this case you will be obliged to pay a post docket, therefore get a number roll as of the term the declaration is of, at Mr. Edge's; pay 4s. 8d. and make a docket paper thus:

- Entries of A. B. gent. one, &c. of the term of St. Hilary, 57-Geo. 3, 1817.

Middlesex. (a) Entry of a recognizance of bail between J. A. plaintiff, against C. D. and E. F. bail of J. C. Roll 860.

But if you have already carried in any rolls of that term, then the docket must be," the further entry of, &c." Take the roll to the clerk of the judgments, he will enter the recognizance, pay 2s. and mark the roll, for which pay 1s. more, if for a further entry; if not 3s. for the docket: then take it to the treasury at Westminster, and file it.

sa. need not

The carrying in the roll is now dispensed with, but Roll and ca. not the entry; and it seems if it is filed any time before be filed till replication, it will be sufficient, if the bail plead nul tiel replication. record; nor is there any occasion to file the ca. sa. till replication. 3 Burr. 1360. Hunt v. Coxe.

cannot be

staid.

The principal died 14th March, 1795, after the return The filing of of the ca. sa., but before the return was filed, a rule was the ca. sa. obtained, calling on plaintiff to shew cause why an exoneretur should not be entered on the bail-piece, and why the filing of the ca. sa. returned by the sheriff should not be staid. Ashhurst, J.-We have been furnished by the officers of the court with the case of Field v. Lahy, determined E. 24 Geo. 3. T. R. which was thus: Cowper shewed cause against a rule for staying the filing of the ca. sa. obtained by Sir T. Davenport, on a suggestion that the principal was dead. Mr. J. Buller read the case of Hunt v. Coxe, and White v. Sachwell. The court said there was no pretence for the motion, and discharged the rule. Therefore as this point has been determined so lately, when the former cases were considered, we think, that that case ought to govern the present, and consequently that this rule must be discharged. Rawlinson v. Gunston, 6 Term Rep. 285. Field v. Lodge, E. 24 Geo. 3.

As yet of the term of St. Hilary, 57 Geo. 3. 1817. Witness Edward Lord Ellenborough.

London, (88) Be it remembered, that on Thursday next Entry of reafter the octave of St. Hilary, in this same term, before cognizance

(a) The county where the original venue is laid.

of bail.