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Of the Sc'fre facias against Bail, and herein of relieving them [by Motion] after they are said to be fixed.
and the principal died i Dec. the ca. fa. being then in the sheriff's office, and not actually returned till the -^d Dec. and the motion was denied. Boyland v. Crooke and others, hail of Porter, B. R. 1748.
But where the principal died after a ca. fa. returned, and before it was filed, the court, on motion, stayed the filing it in savour of the bail. 1 Lill. Abr. 183. Mich. 35 Car. 2. B.R.
A ca. fa. made returnable at a day which falls out of term, would not be void (though liable to be set aside on motion) —nor can such a desect in it be taken advantage of by bail, upon a general demurrer to a Jcire facias brought against them. Burr. Rep. 4 pt. 1187. N
An action was commenced against the bail, and afterwards the plaintiff was obliged to desist therein; and then the bail surrendered the principal before the new action brought, and moved to stay the proceedings; the court held the surrender to be good, it being before the return of the process in this suit, and it was the sault of the plaintiff not to begin light at first. Hoare v. Mingay, one,&c. Stra. 915.
In an action of assault and battery, the plaintiffs procured a judge's order to hold the desendant to bail for 140/. whereupon the desendant became bound in 280/. and the bail jointly and severally in 140 A The plaintiff had a verdict for 300/. and brought separate actions on the recognizance against the bail. On which the bail moved the court, that on payment of one sum of 140/. and costs, proceedings might be staid, and compared this to an action on bond. But the plaintiffs insisted, that there was a difference; for in a bond the condition is to pay the money; and if one obligor pays it, then the other is discharged, as the condition is complied with; but, in a recognizance, the condition is not satisfied till the damages recovered be paid, or the desendant surrendered. And it was held, that the bail being jointly and severally bound, the actions against them could not be discharged, unlefs the condition of the recognizance was performed, viz. That the desendant paid what was recovered, or surrendered himself to the Fleet. Calverac and Ux. v. Pini-ro, Micb..\2 G. 2. C. P. Barnes 74. Prail, Reg. C.PS8.
Of the Scire facias against Bail, and herein of relieving them [by Motion] after they are said to be fixed.
If an action be brought on a recognizance of bail, the writ must be served four days before the return, and the bail may surrender the principal on the quarto die poji of the return fedente curia; but not after the court is risen. Rep. & Cas. of Pratt. C.P. 18.
Motion to set aside A si. sa. ngainst bail, desendant having surrendered in their discharge. It appeared by assidavit, that the second sci. sa. was returnable Cras. Mart. Nov. 12. and the desendant's surrender not before the 151b, the appearance day of the return. Per cur. The assidavit is desective, as it does not shew that the desendant surrendered \sedente curia] on the appearance-day of the return of the second sci. fa. which if he did not, the surrender is out of time. No rule. Barnes 75.
The bail, for one who was convicted afterwards for a selony, brought up the body by habeas corpus; and the court allowed them to surrender him in discharge es themselves. Stra. 1217.
Debt was brought on the recognizance; plea, no ca. fa. repl. a ca. fa. and demurrer, inde. But the court afterwards, being informed by motion that the desendants had surrendered the principal before the return of the latitat against them, ordered the proceedings to be stayed, and an exoneretur to be entered on the bail-piece, notwithstanding the plea, replication, and demurrer, before the motion. Dodson v. King, Cartb. 516.
Os the Scire facias against Bail, and herein of relieving them after Error brought on the principal Judgment.
A Writ of error is so absolutely a supersedeas, that the plaintiff cannot so much as take out a ca. fa. and return non ejl inventus, in order to proceed against the bail. Sweetapple v. Goodfellow. Stra. 867.
'she plaintiff, in order to proceed against the bail, took out a ca. fa. on the 3d of December. On the 4th a writ of error was allowed, notwithstanding which he called for a return of non ejl inventus, and then waiting till the writ of error was at an end, proceeded by scire facias against the bail: and on motion all the proceedings were set aside: for the ground of them, viz. the. return of non ejt invent. was obtained after notice of the writ of error, which in its nature stopt all proceedings, and the sheriff could not so much as look after the desendant. * Stra. 1186. 1 Wils. 16.
But in Ld. Raym. 342. it is held, that error on the principal judgment is no bar to hinder the suing a ca.sa. in order to charge the bail—and so again. Ibid. 1260. Sed q. as the other cases above are more modern.
The plaintiff recovered judgment, took out a ca. fa. and had a non ejl invent. returned. Of the judgment error was brought, and two days after the plaintiff sued out asci.fa. against the bail, who moved to stay the proceedings therein, as is done in cases where, pending error, the plaintiff brings debt on the judgment, insisting that it was more reasonable in this case, because otherwise the bail might lose the advantage of discharging themselves by surrendering the prin- • cipal, which they can do at any time before the return of the second fci.fa. and the court thought it reasonable that the proceedings should be stayed, on the bail's consenting, that if the judgment be affirmed, they would surrender the
* But note, there is a difference in the two courts of B. R. and C.B.
In B. R. a writ of error is a supersedeas from the time of the allowance, and that is notice of itself—or if the party have notice thereof before the allowance, it is even from that notice a fuperfedeas. Bur. Rep. 4 pt. 340. Say 51.
But in C. B. a writ of error is no fuperfedeas from the sealing, but from the delivery to the clerk of the errors. Barnes 205. 209.
Of the Scire facias against Bail, and herein of relieving them after Error brought on the principal Judgment.
principal, or give judgment on the sci. fa. Myer v. Arthur. Stra. 419.
But on a like motion as above, it appearing that bail was not put in upon the writ of error, so as to make an absolute super/ideas, the court resused to stay the proceedings on the sci. fa. saying they would not go one step sarther than the case of Myer v. Arthur. Hunter v. Sampson. Stra. 781.
So where the secondsci. fa. was returned, and a four-day rule given, on the fourth day of which error being brought on the principal judgment, the bail moved to stay proceedings on the sci. fa. and cited Myer v. Arthur. But, Per cur. that differed, for there the bail came in time whilst they might surrender, which they cannot do here after the return of the second sci. fa. at which time no writ of error was brought. Rule denied. Everett v. Gery. Stra. 443.
And, Per cur. in Richardson v. Jelly. Stra. 1270. Where the bail do not apply to stay the proceedings pending error, till their time to surrender is out, we will not give them any time for that purpose, but only four days to pay the money in, after the judgment is assirmed.
The bail in the original action, upon a writ of error brought, are not liable to the costs upon the assirmance of the judgment.
Though an action of debt on a judgment may be brought, pending a writ of error in the original action, and the court will let the plaintiff proceed to judgment thereon, and only stay execution till the writ of error is determined; yet if an action of debt on the recognizance of bail in the original cause be brought, pending error on the judgment, the court will stay proceedings in such action, without the bail giving judgment; for, by the judgment, the bail would be barred from surrendering the principal. Prac. Reg. C.P. 83. ,
The second scire facias was returnable the first day of the term; and a week within term the bail moved to stay the proceedings, on the common terms of giving judgment in the scire facias, and taking sour days to surrender after the affirmance of the principal judgment. But the court said they came too late, after the time to surrender was gone, »Hd would not revive it again; all they would do was, to stay
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Of the Scire facias against Bail, and^ herein of relieving them after Error brought on the principal Judgment.
the suing out execution against them, till after the affirmance in error. Cole v. Buckland, Stra. 872.
The plaintiff got judgment on the scire facias against bail, pending error by the principal, and took them in execution; and now they moved to be discharged. Sed per cur. Though you might have applied, and had the proceedings stayed, yet we will not set them afide. If an action of debt had been brought upon the judgment, we should have granted an impa 1 lance, if it had been asked; but we never set aside the judgment when it is once signed; because we take it, that by your not applying in time you have submitted to meet the plaintiff. Fijher v. Emerton, Stra. 526.
Error was brought in cam. scacc. upon a judgment obtained against the desendant in B. R. and writs of scire facias had issued against the bail in the original action in B. R. where the bail obtained a rule to stay proceedings against them in B. R. upon the scire facias's, until the writ of error returnable in cam^ scacc. should be determined, they undertaking to pay the debt and damages within four days zfter affirmance of the judgment, if the same should be affirmed. The judgment was affirmed in cam. scacc. and afterwards the original desendant brought error returnable in parliament to reverse the judgment given in cam. scacc. on which the bail moved to stay proceedings against them till that writ of error was determined; and though it was objected, that the bail were bound by the express terms in the former rule, the court made the rule absolute, holding, that the word " affirmance" in the first rule, must necessarily be understood to mean final affirmance. Kirfhaw v, Cartwright and Pearce, bail of Green, Burr. 4 pt. 2819.