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Of the Scire facias against Bail, and herein of relieving them [by Motion] after they are faid to be fixed.

and the principal died 1 Dec. the ca. fa. being then in the fheriff's office, and not actually returned till the 3d Dec. and the motion was denied. Boyland v. Crooke and others, bail of Porter, B. R. 1748.

But where the principal died after a ca. fa. returned, and before it was filed, the court, on motion, ftayed the filing it in favour 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 fet afide on motion) -nor can fuch a defect in it be taken advantage of by bail, upon a general demurrer to a fcire facias brought against them. Burr. Rep. 4 pt. 1187.

An action was commenced against the bail, and afterwards the plaintiff was obliged to defift therein; and then the bail furrendered 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 fuit, and it was the fault of the plaintiff not to begin right at first. Hoare v. Mingay, one, &c. Stra. 915.

In an action of affault and battery, the plaintiffs procured a judge's order to hold the defendant to bail for 140 7. whereupon the defendant became bound in 280, and the bail jointly and feverally in 140l. The plaintiff had a verdict for 300l. and brought separate actions on the recognizance against the bail. On which the bail moved the court, that on payment of one fum of 1401. and cofts, proceedings might be ftaid, 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 fatisfied till the damages recovered be paid, or the defendant furrendered. 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 defendant paid what was recovered, or furrendered himself to the Fleet. Calverac and Ux. v. Pinkero, Mich. 12 G. 2. C. P. Barnes 74. Pratt, Reg. C. P.

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Of the Scire facias against Bail, and herein of relieving them [by Motion] after they are faid 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 furrender the principal on the quarto die post of the return fedente curia; but not after the court is rifen. Rep. & Caf. of Pract. C. P. 18.

Motion to fet afide a fi. fa. against bail, defendant having furrendered in their difcharge. It appeared by affidavit, that the fecond fei. fa. was returnable Cras. Mart. Nov. 12. and the defendant's furrender not before the 15th, the appearance day of the return. Per cur. The affidavit is defective, as it does not fhew that the defendant furrendered [fedente curia] on the appearance-day of the return of the fecond fci. fa. which if he did not, the furrender is out of time. No rule. Barnes 75.

The bail, for one who was convicted afterwards for a felony, brought up the body by habeas corpus; and the court allowed them to furrender him in difcharge of 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 defendants had furrendered the principal before the return of the latitat against them, ordered the proceedings to be ftayed, and an exoneretur to be entered on the bail-piece, notwithstanding the plea, replication, and demurrer, before the motion. Dodfon v. King, Carth. 516.

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Of the Scire facias against Bail, and herein of relieving them after Error brought on the principal Judgment.

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Writ of error is fo abfolutely a fuperfedeas, that the plaintiff cannot so much as take out a ca. sa. and return non eft inventus, in order to proceed against the bail. Sweetapple v. Goodfellow. Stra. 867.

The 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 eft inventus, and then waiting till the writ of error was at an end, proceeded by fcire facias against the bail and on motion all the proceedings were set aside: for the ground of them, viz. the return of non eft invent. was obtained after notice of the writ of error, which in its nature stopt all proceedings, and the fheriff could not fo much as look after the defendant. * Stra. 1186. 1 Wilf. 16.

But in Ld. Raym. 342. it is held, that error on the principal judgment is no bar to hinder the fuing a ca. fa. in order to charge the bail-and fo again. Ibid. 1260. Sed q. as the other cafes above are more modern.

The plaintiff recovered judgment, took out a ca. fa. and had a non eft invent. returned. Of the judgment error was brought, and two days after the plaintiff fued out a sci. fa. against the bail, who moved to stay the proceedings therein, as is done in cafes where, pending error, the plaintiff brings debt on the judgment, infifting that it was more reasonable in this cafe, because otherwise the bail might lose the advantage of discharging themselves by furrendering the prin- · cipal, which they can do at any time before the return of the fecond fci. fa. and the court thought it reasonable that the proceedings fhould be ftayed, on the bail's confenting, that if the judgment be affirmed, they would furrender 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 fuperfedeas 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 supersedeas. 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. principal,

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, fo as to make an absolute fuperfedeas, the court refused to ftay the proceedings on the fci. fa. faying they would not go one step farther than the cafe of Myer v. Arthur. Hunter v. Sampfon. Stra. 781.

So where the fecond fei. 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 fci. fa. and cited Myer v. Arthur. But, Per cur. that differed, for there the bail came in time whilft they might surrender, which they cannot do here after the return of the fecond fci. fa. at which time no writ of error was brought. Rule denied. Everett v. Gery. Stra. 443.

And, Per cur. in Richardfon v. Felly. Stra. 1270. Where the bail do not apply to stay the proceedings pending error, till their time to furrender 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 affirmed.

The bail in the original action, upon a writ of error brought, are not liable to the cofts upon the affirmance of the judgment.

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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 caufe be brought, pending error on the judgment, the court will stay proceedings in fuch action, without the bail giving judgment; for, by the judgment, the bail would be barred from furrendering the principal. Prac. Reg. C. P. 83.

The fecond feire 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 fcire facias, and taking four days to furrender after the affirmance of the principal judgment. But the court faid they came too late, after the time to furrender was gone, and 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 fuing out execution against them, till after the affirmance in error. Cole v. Buckland, Stra. 872.

The plaintiff got judgment on the fcire facias against bail, pending error by the principal, and took them in execution and now they moved to be difcharged. Sed per cur. Though you might have applied, and had the proceedings stayed, yet we will not fet them afide. If an action of debt had been brought upon the judgment, we should have granted an imparlance, if it had been afked; but we never fet afide the judgment when it is once figned; because we take it, that by your not applying in time you have fubmitted to meet the plaintiff. Fisher v. Emerton, Stra. 526.

Error was brought in cam. fcacc. upon a judgment obtained against the defendant in B. R. and writs of fcire facias had iffued against the bail in the original action in B. R. where the bail obtained a rule to ftay proceedings against them in B. R. upon the feire facias's, until the writ of error returnable in cam. fcacc. fhould be determined, they undertaking to pay the debt and damages within four days after affirmance of the judgment, if the fame fhould be of firmed. The judgment was affirmed in cam. feacc. and afterwards the original defendant brought error returnable in parliament to reverfe 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 abfolute, holding, that the word "affirmance," in the first rule, must neceffarily be understood to mean final affirmance. Kirfhaw v. Cartwright and Pearce, bail of Green, Burr. 4 pt. 2819.

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