certain recognizance acknowledged by them the said J. F. and R. M. in our said court before us, for the said C. D. at the suit of the said A. B. in the plea aforesaid, by the default of the said J. F. and R. M. as likewise appears to us of record; and have you that money before us at Westminster, next after on to render to the said C. D. for his damages, costs, and charges aforesaid; and have there then this writ. Witness, &c. and have you then there Testatum ca. sa. After the word "record," say, and our sheriff of Middlesex, at a certain day now past returned to us, that the said J. F. and R. M. were not, nor was either of them found in his bailiwick, whereupon on the behalf of the said A. B. it is sufficiently testified in our same court before us, that the said J. F. and R. M. lurk and secrete themselves in your county; and have there then this writ. Witness, &c. Testatum fi. fa. (a) After the words "for the debt and damages aforesaid," say,and our sheriff of Middlesex, at a certain day now past, returned to us, that the said J. F. and R. M. had not, nor had either of them, any goods or chattels in his bailiwick, whereof he could cause to be levied the damages aforesaid, or any part thereof; whereas it is testified in our same court before us, that the said J. F. and R. M. have sufficient goods and chattels in your bailiwick, whereof you may cause aforesaid, of; and have there then this writ. Fi. fa. in debt. (b) George the third, &c. To and every part thereWitness, &c. Ca. sa. in debt. George, &c. To the she (a) There is no necessity for reciting the supposed first writ of fi. fa. or ca, sa. and then command the sheriff to levy; this is a much shorter way. (b) If execution be taken against the bail, and they pay part, yet the plaintiff may afterwards take execution against the principal for the residue, the bail having been previously set at liberty. J Sid. 107. Cro. Jac. 549. the sheriff of Middlesex, greeting: we command you, that of the goods and chattels in your bailiwick of J. F. and R. M. the bail of C. D. you cause to be made as well a certain debt of 1001. which A. B. lately in our court before us at Westminster, recovered against the said C. D. as also 151. 10s. which were awarded to the said A. B. in our same court before us, for his damages, which he sustained, as well by occasion of the detaining the said debt, as for his costs and charges by him about his suit in that behalf expended, whereof the said C. D. is convicted, as appears to us of record: A. B. as well a certain debt of 1001. which the said A. B. lately in our court before us at Westminster, recovered against the C. D. as also 141. 10s. which were adjudged to the said A. B. in our said court before us, for his damages, which he sustained, as well by occasion of the detaining the said debt, as for his costs and charges by him about his suit in that behalf expended, whereof the said C. D. is convicted, as appears to us of record: And whereupon it is adjudged in our said court before us that the said A. B. have his execution against the said J. F. and R. M. for the said debt and damages, according to the force, form, and effect of a certain recognizance acknowledged by them the said J. F. and R. M. in our said court before us, for the said C. D. at the suit of the said A. B. in the plea aforesaid, by the default of the said J. F. and R. M. as also appears to us of record: And have you that money before us at Westminster, on next after to render to the said A. B. And have you then there this writ. Witness, &c. for his debt and damages aforesaid, and have you then there this writ. Witness, &c. Bail rendering on a sci. fa. How long the bail have to render, and when they are fixed on a sci. fa. On action. On recog in the C. P. What Time Bail have to render the Principal when the Proceedings are by Sci. fa. If the bail mean to acquit themselves of their recognizance entirely, and run no hazard of the death of the defendant, then they must render him in their discharge, before the return day of the ca. sa. if proceedings be by bill, but if the proceedings be by original, then on the quarto die post of the return of the ca. sa. as the death of the principal afterwards will not discharge them. 2 Cro. 195. Jon. 139. Str. 511. 2 Wils. 67. The defendant may render himself in discharge of his bail before or after the judgment. 6 Mod. 235. But if they do not render the principal on the return day of the ca. sa. then they have until the return day (if the proceedings by be bill,) sedente curia, of the first sci. fa. if it be returned scire feci; but if a nihil is returned thereon, then until the return day, sedente curia, of the second sci. fa. N. on R. E. 5 Geo. 2. And if the proceedings be by original, they have till the quarto die post of the return of the first sci. fa. if returned sci. feci, if not, then till the quarto die post of the return day of the second. 4 Burr. 2134. Bailey v. Smeathman, 1 Wils. 270. If an action be brought, then eight entire days in full term, next after the return of the writ. R. Trin. 1 Ann. An intervening Sunday in this case is to be reckoned as one of the eight days. Creswell v. Green, 14 East, 537. 8 Term Rep. 422. Wilkinson v. Vass, eight days from the return of the writ. And where the plaintiff sued the bail on recognizance, who did not render the principal within eight days, and then plaintiff died, (after plea and demurrer in that action,) and his executors brought another action against the bail, court held, the bail had eight days from the return of the writ in the second action in which to render the principal. Ibid. But if the action be brought in this court, against bail, nizance taken on a recognizance of bail taken in C. P. they have the same indulgence, (of eight days in full term after the return of the writ against them,) to render, as if the recognizance had been taken in this court. Fisher v. Branscombe, 7 Term Rep. 355. Bankrupt. Render after court up bad. A bankrupt attending the commissioners may be taken by his bail, and surrendered in their discharge. Ex parte Gibbons, 1 Atk. 511. Per Cur.-The bail ought to render the defendant on the quarto die post of the return of the second scire facias sitting the court, (where proceedings are by original,) and a render after the rising of the court at a judge's chamber is too late. Simmonds v. Middleton, 1 Wils. 270. 2 Term Rep. 758. S. P. is to be con strued. The court unanimously agreed, that it was right and How this rule necessary to adhere strictly to the established rules of the court, relating to the time and manner of bail surrendering the principal. They held, that a surrender at about half an hour after eleven at night on the last day, (which was the last day of the term,) without an actual bringing the defendant into court (which was then risen), or before a judge (none being accessable at that late hour,) in order to have an exoneretur entered upon the bail-piece, was not sufficient; though it was so late at night as to render the doing this impracticable; and though the defendant was actually delivered to a judge's tipstaff, and even lodged in the King's Bench prison, that very night, which the bail swore was the utmost that the very late notice they received from the sheriff of the sci. fa. (which was returned scire feci) gave opportunity to them to do. Hunt v. Cox, 3 Burr. 1360. 4 Burr. 2134. 13 East. 391. certified by Master Owen, that the bail has, by original, S. P. till the quarto die post to surrender (provided it be done sedente curia) Bailey v. Smeathman. See 2 Term Rep. 757. 1 East, 88. Clarke v. Bradshaw. S. P. must lie in the For the purpose of fixing the bail on sci. fa. the ca. sa. How long the must lie the four last days in the office before the return; ca. sa. against and the bail having once been prepared to render their the principal principal in time, which they then omitted to do in con- office. sequence of a rule nisi taken out by them on the suggestion of the court, with a view to an arrangement out of court between the parties, (the principal being a lunatic,) which rule was afterwards discharged, without providing for the bail to be placed in the same situation that they were before; the court in a subsequent term permitted the bail to take the above objection to the regularity of the proceedings, though they had before, in the same term, before they were aware of this objection, brought forward another objection, which was overruled. Cook v. Brockhurst and another, 13 East, 588. The court refused to enlarge the time to render the Lunacy. principal on account of the defendant's being a lunatic. Cock v. Ball, 13 East, 355.; it not appearing to the court, that he was in such a state as to occasion any immediate peril of life, either to himself, or to those about Peer or member. Bankrupt. Alien. When the court will permit an exoneretur to be entered on the bail-piece. Of exonerating the Bail without a Surrender in their If the plaintiff declare for a different cause of action from what is expressed in the process, or if he declare by original, in a different county from that where the action is brought, 3 Lev. 235. R. E. 2 Geo. 2. a, the bail are discharged; if the defendant dies, or becomes a peer of the realm, Dougl. 45. or member of the house of commons, Langridge, one, &c. v. Flood, esq. H. 26 Geo. 3. at any time pending the action, court, on affidavit of these facts, will order an exoneretur to be entered on the bail-piece. In vacation, a judge will order it. So if defendant becomes bankrupt, and obtains his certificate pending the action, and before bail fixed; he may, by summons on affidavit of the debt having accrued before he became bankrupt, and having obtained his certificate fairly and without fraud, be discharged; but such certificate must be produced to the judge. 8 T. R. 609. 14 East, 599. But the bail not having applied in time to entertain an exoneretur, till after the money levied, they can only be relieved on payment of costs. Mannin v. Partridge and another, bail of Goodshall, ibid. So if he be already surrendered, he may apply to be discharged out of custody on the like affidavit and producing his certificate. (a) So the court will permit an exoneretur to be entered, if a defendant (an alien) be sent out of the kingdom, under stat. 33 Geo. 3. c. 4. unless bail are indemnified, or have money left in their hands to pay plaintiff. Merrick v. Vaucher, 6 Term Rep. 50. But court refused where 10001. was left with the attorney who indemnified the bail, and a defence was made, to discharge the bail on payment of 10001. Coles v. De Hayne, Ibid, 52. 246. The defendant having been convicted of felony and (a) But where the validity of the commission is dispu ted, the court will direct it to be tried in a feigned issue, notwithstanding the certificate, before an exoneretur is entered. Willison v. Smith, E. 22 Geo. 3. |