Of the Scire facias against Bail, and of Proceedings therein.

a defendant is the

where the action is brought, his fureties or bail ftipulate, that the defendant fhall, if he be condemned in the action, fatisfy the plaintiff his debt and cofts; or else, that he fhall furrender himfelf a prifoner; or in cafe he does neither, that they (his bail) will pay what the plaintiff recovers for him. Therefore after the plaintiff has recovered judgment in his action, he muft, before ever he proceeds against the bail, look to fatisfaction from the defendant; and the plaintiff has his election of three forts of executions, either of which he is at liberty to pursue against the defendant, viz. by elegit against his lands and goods; by fieri facias against his goods only; or by capias ad fatisfaciendum against his body; by which writ, he may be imprifoned till fatisfaction is made.-If the plaintiff proceeds by elegit or fieri facias, he aims at a fatisfaction by a feizure of the defendant's property; and by taking out either of those writs of execution, he cannot fix the bail; but if he would look to the bail to make him fatisfaction, his execution must be by a capias ad fatisfaciendum against the principal; and that is the only writ which has effect to fix the bail, as it amounts to a demand on him to furrender himfelf a prisoner; which if not done by the return thereof, or if he is not furrendered by the bail in difcharge of themfelves, it is prefumed that the bail are ready to pay the debt and damages recovered.

If the plaintiff therefore would ever refort to the bail, his execution must be by capias ad fatisfaciendum against the principal; for then he fhews, that he would have the body till fatisfaction is made him; which writ of ca. fa. must be returned by the fheriff, with a non eft inventus, for the bail are liable only on failure of their principal.

When the recognizance is forfeited by the defendant's not being furrendered by his bail, or furrendering himself to prifon, the plaintiff may either bring his action of debt on the recognizance, or proceed by feire facias, by which the fheriff is commanded to make known to them the judgment recovered, and the force and effect of their recognizance entered into, that the defendant has not surrendered himself to the prison of the marshal of the Marshalfea or Fleet, as the cafe is; and therefore, that they appear in court and fhew

caufe,

Of the Scire facias against Bail, and of Proceedings therein.

caufe, why the plaintiff fhould not have execution against them, for his debt and damages recovered.

In order to ground the proceedings by fcire facias against the bail, the plaintiff, before he fues out the writ of feire facias, must enter the recognizance of bail on a roll, carry in the fame, and docquet it; fo he muft, if he proceeds by action of debt on the recognizance. The entry on the roll is to this effect in B. R.

Michaelmas term 20th George the third (the term this declaration is of)

Middlefex f. A. B. complains against C. D. &c. [go through the declaration] and the faid C. D. by John Palmer his attorney, comes and defends the wrong and injury, when, &c. and thereupon E. F. of Charing Cross, in the county of Middlefex, mercer; and G. H. of Fleet-fireet, in the city of London, grocer, [defcribing the bail as in the recognizance] came into the court of our lord the king, before the king himself, at Weftminster, in their proper perfons, and became pledges and manucaptors, and each of them became pledge and manucaptor for the said defendant, that if it fhould happen that the faid defendant fhould be condemned in the plea aforefaid, then the faid manucaptors granted, and each of them did grant, that all such * ́damages, cofts, and charges [if the action be in debt, and judgment be recovered on a verdict, fay, did grant, that as well the faid debt, as all fuch damages, cofts, and charges-or if

* In B. R. where the fuit is by bill, the bail are not bound in a fum certain, but only undertake that the defendant fhall pay the condemnation money, or render his body to prifon; and the recognizance being general, must be reduced by the judgment to a certainty. But in C. B. the bail are bound in a fum certain, upon condition, that if the defendant be condemned in the faid action, he fhall pay the condemnation money, or render himfelf a prifoner to the Fleet for the fame; or upon failure thereof, that they will do it for him.

1

Of the Scire facias against Bail, and of Proceedings therein.

in debt and judgment was by default, fay, did grant, that as well the faid debt, as all damages] as fhould be adjudged to the faid plaintiff in that behalf, fhould be made of their and each of their lands and chattels, and to be levied to the ufe of the faid plaintiff, if it fhould happen that the defendant fhould not pay the faid plaintiff, or render himself on that occafion, to the prifon of the marshal of the Marfhalfea, of our faid lord the king, before the king himfelf.

The docquet paper" the entry of Jofeph Lyon, gentleman, one, &c. of Michaelmas term 20th of George the third.

Middlefex f. Recognizance of bail for C. D. at the fuit of A. B.

Roll 273.

When the entry of the recognizance is made up, and the roll docquetted and carried in, and a capias ad fatisfaciendum alfo fued out, and got returned by the fheriff, with a non eft inventus, the recognizance thereby being forfeited, becaufe there is a default in the party, the plaintiff may fue out a feire facias against the bail. But though the recognizance be abfolutely forfeited in law, yet the bail may furrender the principal afterwards, and the court, ex gratiâ, on motion, will relieve the bail, as will be fhewn hereafter.

If the plaintiff has not fued out a ca. fa. againft the principal, in order to ground his proceedings by fcire facias against the bail, within a year after the judgment obtained, a fcire facias fhould first go against the principal to revive the judgment, before a feire facias goes against the bail on their recognizance; but the bail cannot take advantage of this. Raym. 1096. 6 Mod. 304. Helt 90.

A feire facias does not lie againft bail, unless a ca. fa. is fued out returned and filed; but it may be filed after the fcire facias illues. Ait. Pract. 343. 1 Lev. 225. Note on

Reg. Eaft. 5 Geo. 2.

Of the Scire facias against Bail, and of Proceedings therein.

If the principal defendant dies after the return of the ca. fa. although his death be before the fuing forth the first feire facias, the bail are fixed with the debt and cofts, in point of law; and the feire facias's are only an indulgence of the court. 2 Wilf. 67.

On a recognizance taken in B. R. the fcire facias muft be brought in Middlefex. 3 Danv. Abr. 313. for the recognizances in B. R. are not obligatory by the caption, but by their being entered of record in the court. Salk. 600, 659. Hob. 195. Brownl. 69. S. C. Moor 883. S. C. Styles 9.

But if bail be taken by a commiffioner in the country, the fcire facias may either be fued out into Middlefex, where the recognizance is entered of record, or the county where taken. Lutw. 1287.

But in C. B. if a recognizance be taken in London at a judge's chambers, and entered on record as taken in London, all the prothonotaries held, that the feire facias ought to be directed to the fheriffs of London, and not to the theriffs of Middlefex. Bro. Abr. fol. 65. b. pl. 85. Although the recognizance is not a perfect record till it is entered upon the roll, yet when it is entered in C. B. it is held, that it is a record from the firft acknowledgment, and binds perfons and lands from that time; for it is the acknowledgment before a judge that gives it the force of a record, though the inrolment be necellany for the teftification and perpetuity of it. Heb. 195.

But in Andrews and Harborne, the prothonotaries certified, that upon fuch recognizance, the faire facias might be brought in Middlefex, or in London. Roll. Abr. 891. All. 12.

And fo, as in B. R. where bail is taken by commiffioners, the feire facias is fued out, either into the county where taken, or into Middlefex, where filed. Att. Prac. 361.

But note, On a recognizance of bail in error, if it be entered to be taken at a judge's chambers in London, the feire facias must be fued there.

A fcire facias against bail, is not amendable. Grey v. Jefferfon. Stra. 1165.

But a feire facias may be quafhed, on motion, without cofts, before plea pleaded, though defendant has entered an appearance. Barnes 431.

1

Of the Scire facias against Bail, and of Proceedings therein.

If the judgment of an inferior court is removed into B. R. or C. B. by certiorari, and the party fues a feire facias to have execution, he ought to fhew in his fcire facias, that it is the judgment of fuch an inferior court, removed thither by certiorari; and ought to fhew the particular limits of the inferior jurifdiction, and pray execution within the particular limits. But if the judgment be removed into B. R. or C. B. by writ of error, or false judgment, and affirmed, the party may have execution in any part of England; for by the affirmance it is become the judgment of the superior court. But then in a feire facias upon fuch a judgment affirmed, the plaintiff ought to alledge, that it was removed thither by writ of error, &c.. Vide Guilliam v. Hardy. 1 Ld. Raym. 216.

Of