William Tidd.

The practice of the Courts of King's Bench and Common Pleas, in personal actions, and ejectment : to which are added, the law and practice of extents, and the rules of court, and modern decisions, in the Exchequer of pleas (Volume 1) online

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Online LibraryWilliam TiddThe practice of the Courts of King's Bench and Common Pleas, in personal actions, and ejectment : to which are added, the law and practice of extents, and the rules of court, and modern decisions, in the Exchequer of pleas (Volume 1) → online text (page 54 of 120)
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in o-s were stayed in an action against bail, and an exoneretur ordered to be
entered on the bail-piece, after the defendant had obtained his certificate, on
payment of the costs of the action, and of the application ; although the re-
coo-nizance had been entered into for his discharge out of custody, after final
judo-ment, and the certificate had not been allowed by the chancellor, till
after the expiration of the time stipulated for making the render. (???) But

the court of Common Pleas would not relieve the bail of a bank-
[ *291 ] rupt, who were fixed after the appearance day *or quarto die

jjost of the return of the second scire facias, which happened be-
tween the signature of the bankrupt's certificate by his creditors and the
commissioners, and the time of its allowance by the Lord Chancellor. (aa)
And, in that court, where an action was commenced, and the defendant
became bankrupt and obtained his certificate, and afterwards permitted
judgment to be signed for want of a plea, after which the plaintiff pro-
ceeded against the bail, the court of Common Pleas would not relieve the

(a) 6 Durnf. & East, 284. (b) Ante, 216.

(cc) Doug. 45.

{dd) Lanffridje, one, c^c. v. Flood, H. 26 Geo. III. K. B. 4 East, 190, S. C. cited.

(ee) 1 Kea. 504. 1 Bur. 244, 5, S. C. Id. 436. Cowp. 824.

(/) 2 Chit. Rep. 105.

Iff) 1 Barn. & Cres. 247. 2 Dowl. & Ryl, 385, S. C.

(/() Ante, 283. (0 Ante, 283, 4.

[k] Ante, 284.

(l) Cleveland v. Dickenson c^ another, bail of Tomkins, E. 41 Geo. III. K. B. 2 Chit. Rep.
104. 14 East, 599. 1 Barn. & Aid. 332. 3 Barn, k Cres. 222. 5 Dowl. & Ryl. 258, S. C.
K. B. 2 New Rep. C. P. 180, 190. 8 Taunt. 28. 1 Moore, 457, S. C. 7 Moore, 5U6. 1
Bing. 1G4, S. C. C. P. M'Clel. 310, 399. Excheq.

(77j) M'Clel. 399. {aa) 7 Taunt. 589.


bail on motion. (J) Anil it seems that in such case, they could in no ^yay
take advantage of the bankruptcy and certificate.(6)

The court of King's Bench would not relieve the bail, on the ground that
the debt was contracted while the defendant was resident in a foreign coun-
try, and before he became a bankrujjt by the laws of that country, though
he might have obtained his ccrtificale there. (e) And where the defendant
became bankrupt, before the statute 49 Geo. III. c. 121, § 14, and the plain-
tift' proved his debt under the commission, but did not otherwise proceed
under it, the court held that the bail were liable; though the plainiifT had
lain by two years before he brought his scire facias against them. (J) But
now, since the making of the above statute, if a [)laintiff, after judgment
obtained, prove his debt under a commission of bankrupt sued out iigainst
the defendant, and also proceed against the bail, the latter are thereby enti-
tled to their discharge ; and the court on motion will order an exoneretur
to be entered on the bail-piece. (c) Bail to the sheriff however, we have
seen,(/) woi-e not considered as sureties, or liable for the debt of a bank-
rupt, within the meaning of the statute 40 Geo. III. c. 121, § 8. And
therefore, where such bail, being fixed with the debt and having paid it,
sued the principal and obtained judgment, after a commission of bank-
rupt had issued against him, but before he had obtained his certificate, and
after he had obtained it the bail in the second action applied to be exone-
rated, on the ground that the plaintiffs, the bail in the original action, might
prove their debt under the commission, by virtue of the last mentioned sta-
tute, the court of Common Pleas refused to interfere in a summary way, but
left the bail to their writ of audita querela ;{g) upon which the bail rendered
the defendant, and the court, on a subsequent application, refused to dis-
charge him.(/i) But this case is now provided for; and the bail to the
sheriff, having paid the debt, or part of it in discharge of the whole, are
entitled to relief under the commission, by the statute G Geo. IV. c. 16,
§52. _

The bail cannot plead the bankruptcy and certificate of their principal, in
their own discharge ; but must apply to the court on that ground,
to *be relieved on motion. (a) And formerly, if the defendant had [ *292 ]
become bankrupt, and obtained his certificate, before the bail were
fixed, the method was, for the bail to surrender him ; and then for the de-
fendant to apply to be discharged, upon an affidavit, stating his having be-
come bankrupt since the cause of action arose, and obtained a certificate of
his conformity under the commission. (i^>) But of late, when a bankrupt is
clearly entitled to his discharge, the court on motion, or a judge on sum-
mons, to avoid circuity, have ordered an exoneretur to be entered on the
bail-piece, or in the filacer's book, without the form of a regular surrender
by his bail.(cc') And the court of King's Bench will relieve the bail on mo-
tion, without directing an issue to try the fact of the bankrupt's being a

[b] 3 Taunt. 46 ; and see 4 Dowl. & Ryl. 373, accord; but see 3 Harn. k Cres. 222. 5 Dowl
& Ryl. 258, S. C.semb. contra.

(f) 8 Durnf. & East, 609 j and see 3 Moore, 244. 5 Moore, 331; but ii</c ante, 211, and the
cases there cited.

(rf) IIill V. Simpson, bail of Jackson, H. 26 Geo. III. K. B. ; but see 2 Blac. Rep. 1317.

(e) 2 Taunt. 246; and see stat. 6 Geo. IV. c. 16, g 59. Ante, 202, 3. (/) Ante, 208.

(ff) 6 Taunt. 329. 2 Marsh. 37, S. C. (A) 6 Taunt. 330. 2 Marsh. 192, S. C.

(«) 1 Bos. & Pul. 448, 450, (h). 2 Bos. & Pul. 45. (hb) Cowp. 824.

(cf) Id. ibid. Barnes, 104. 1 Bos. & Pul. 450, (/■),j'(rIjullcr,J.; and see tlie cases referrtd
to, ante, 290, (1).

Vol. I.— 19



trader- the certificate, by the statute G Geo. IV. c. 16,(tZ) being made suffi-
cient evidence of the trading, kc.{ee) But the court of Common Pleas would
not exonerate the bail, upon the defendant's having become bankrupt and
obtained his certificate, without giving the plaintifi" an opportunity of trying,
by an issue, whether the certificate were fairly obtained. (^') If the bail
do not apply to enter an exoneretur on the bail-piece, till after proceed-
ings have been had against them, they can only be relieved on payment
of costs. ((/</)

Where the defendant was under sentence of transportation for a felony,
the court permitted an exoneretur to be entered on the bail-piece.(7iA) So,
where the defendant being a seaman, and having been holden to bail on
mesne process, for a debt under 20Z., was impressed into the king's service,
the court, on application of the bail, ordered an exoneretur to be entered. (i)
So, whilst the alien act(k) remained in force, if a defendant had been sent
out of the kingdom under that act, the court of King's Bench would have
ordered the bail bond to be delivered up to be cancelled,(Z) or permitted
the bail above to enter an exoneretur ; unless they were indemnified, or
had money in their hands belonging to the defendant, sufficient to answer
the plaintiff's demand.(wi) But where the defendant was in custody under
a charge of murder committed in Ireland^ where a bill was found by the
grand jury against him, and application had been made to the secretary of
state, to send him over there in order to take his trial ; the court of King's
Bench, though they granted a habeas corpus to bring him up, in order that

he might be surrendered by his bail,(w) would not, without an
[ *29o ] actual surrender, allow an exo?ieretur to be entered on the *bail-

piece.(a) So, where the defendant was in custody of a messenger
under an order of the secretary of state, for the purpose of being sent out
of the kingdom by virtue of the alien act,{b) the court of King's Bench
refused to issue a habeas corpus, on the application of his bail, to bring
him up, that they might render him in their own discharge, on account of
the public inconvenience, and of the probable risk of his passage, which
had been taken in a ship immediately about to sail to his destined port :
and they also refused, while he was still in the kingdom, and might pos-
sibly be set at large again, to enter an exoneretur on the bail-piece ; but
they said that they would remember that the situation of the bail was
without any fault of theirs, if any proceedings were taken against them in
the meantime. (c)

The general rule by which the courts are governed, in the exercise of
an equitable interference in these cases, is said to be this : that wherever
by the act of the law, a total impossibility or temporary impracticability
to render a defendant has been occasioned, the courts will relieve the bail
from the unforeseen consequences of having become bound for a party

(d) ?j 126 ; and see stat. 5 Geo. II. c 30, ? 7, 13. Ante, 212.

\ee) 1 Barn. & Aid. 332. Willison v. Smith, E. 22 Geo. III. K. B. upon the authority of
another case, which had been determined on the construction of the statute 5 Geo. II. c. 30,
2 7, 13, after great argument, corilra. see Ed. B. L. 415.

(ff) 6 Taunt. 75; and see 5 Moore, 331.

(^^) 2 Chit. Rep. 104. 14 East, 599. 1 Barn. & Aid. 332. 8 Taunt. 28. I Moore, 457,
S. C. Ante,2?>i.

(hh) 6 Durnf. & East, 247. («) 7 East, 405 ; and see 1 Bur. 339.

{k) 33 Geo. III. c. 4. Ante, 215, 16. {I) 7 Durnf. & East, 517.

(m) 6 Durnf. &East, 50, 52, 246. (n) Ante, 287.

{a) 7 Durnf. & East, 226. 15 East, 78. {b) 43 Geo. III. c. 155.

(c) 13 East, 457. Ante, 287.


whose condition has boon so changed, by operation of law, as to put it out
of their power to perform the alternative of their oblifiration, without any
default, laches, or possible collusion on their part.((/) The practical modes
of relief which the courts have adopted for that purpose, arc those three :
first, in cases of total impossibility, it is effected by ordering an exonerctur
to be entered upon the bail-piece, on motion for that purpose ; or, in the
case of bail below, that the bail bond be delivered up to be cancelled :[e)
That mode is consistent with the jurisdiction of all the three courts. A
second mode, (which is necessarily confined to the court of King's
Bench, )(/) has been, in cases of temporary impracticability arising from
the defendant being, at the time when he should be rendered, in legal
criminal custody, by ordering him to be brought up by habeas corpus, in
order that he may be formally rendered in discharge of his bail. A third
mode is, by the courts enlarging the time for making the render : This
also is within the power, and may be resorted to by all the courts. (^)
And the short result of all the determinations seems to be, that wherever
the court cannot absolutely exonerate the bail, and, cither from the con-
stitution of the court itself or the circumstances of the particular case,,
cannot enable them at once to make a formal render, they will, in all prac-
ticable cases of a temporary impossibility occasioned by act of law, and
even perhaps in other cases under special circumstances, enlarge the time
for making the render, in order to give the bail an opportunity of
rendering their principal, as soon as it shall be in their power to do so.(7t)
It remains to be considered, in what cases the bail are excused from the
performance of the condition of their recognizance, by the act or
default of *the i^laintiff. If the plaintiff do not declare against [ *294 ]
the defendant in due time, so that the cause is out of court,(a) his
bail are discharged. And it seems, that where there has been a great and
unnecessary delay in proceeding to trial, the bail may be relieved, on their
own application; though the court will not discharge them, at the instance
of the defendant. (?>) So, where the plaintiff declares by original, in the
King's Bench, in a different county from that where the action is brought,
his bail are discharged :[c) But in the King's Bench by hill, or in the Com-
mon rieas,((:ZcZ) the declaring in a different county from that in which the writ
issued, is not deemed a Avaiver of bail. So, the bail are discharged, if the
plaintiff declare against the defendant for a different cause of action from
what is expressed in the process. (ec) But, in the Common Pleas, a variance
between the writ and count, (the ac etiam being in case on j^i'omiseSy
but the. declaration in debt,) is not a ground for entering an cvoneretur
on the bail-piece, where the sum sworn to is under 4:0l.{ff) The affidavit
to hold to bail must also correspond in substance with the process :(////) and
therefore, if the plaintiff declare against the defendant by a different name,.
1 Moore & P. 24, or, for a different cause of action from what is expressed

(d) 13 Price, 525, in notU.

(e) 7 Duriif. & East, 517. (/) Ante, 287.

\g) 13 Price, 525, in notia. (A) Id. 532, 3, in nntis.

(a) 2 New Rep. G. P. 404. (6) 1 Chit. liep. 2S1.

(c) 3 Lev. 235. R. E. 2 Geo. II. (a), K. B. Barnes, 116.

\dd) R. H. 22 Geo. III. C. P.

\ec) Per Cur. M. 43 Geo. III. K. B. 3 Wils. 61. 2 H. Bloc. 278. 2 Bos. & Pul. 358. 5
Moore, 483 ; and see 2 East, 305 ; but see 2 Moore, 301. 8 Tuunt. 304, S. C. 1 Moore, 362.
1 Bing. G8, S. C. 8 Moore, 33. 1 Bing. 206, S. C.

(f) 1 H. Blac. 310. Ante, 150. (ffj) 1 Chit. Rep. 669, (a).



in the aflTuiavit, his bail are discharged :{hh) But a trifling variance in the
names of the parties is not material, provided there be no doubt as to their
identity. (i) And it is too late to move to enter an exoneretur on the bail-
piece, on the ground of a variance between the declaration and affidavit to
hold to bail, after bail put in and justified, declaration delivered, plea de-
manded, and time allowed for pleading. (Z:) In the Common Pleas, bail are
not liable, where the declaration consists of several counts, unless the plain-
tiff recover for the cause of action specified in the affidavit.(?) And, in that
court, where the affidavit was for a certain sum, on a bill of exchange only,
and the plaintiff recovered a greater sum, as well on the bill as for goods
sold, the bail were holden to be liable only for so much as was recovered on
the bill of exchange. (m) And it seems, that if the sum recovered be under
a bailable amount, the bail are discharged. (?«) But where the plaintiff, hav-
in<T filed a bill in equity, and arrested the defendant for the same cause of
action, had, in consequence of an order out of Chancery, for that
[ *295 ] purpose elected to proceed in equity, the court refused *to dis-
charge the bail, but left them to move to set aside any proceed-
inf^s which might be taken against them. (a)

It was formerly holden, that a cognovit by the principal, without notice
to the bail, did not discharge them: (5) And accordingly, where the defend-
ant in the action gave a cognovit for the debt and costs, payable by seven
instalments, and afterwards the principal was discharged under an insolvent
debtor's act, which related to a certain day, when three only of the instal-
ments were payable : it was holden that the bail who had been fixed before
the passing of the act, though after the day to which it related, were liable
for the whole condemnation money, the entire debt, quel debt, being due
instanter ; with a stay of execution only for certain portions, at certain
times.(c) But where the plaintiff had taken a cognovit from the defendant,
•with an agreement to receive the debt by instalments, of which no notice
was given to the bail, the court of King's Bench set aside an execution
against them, sued out above a year after the judgment, without a scire
facias to revive it '.{d) And in general, although the bail are not discharged
by the plaintiff's taking a cognovit from the principal without their con-
sent, where judgment is to be entered up thereon instanter^{e) or the debt
is payable by instalments, within the time in which the plaintiff would have
been entitled to judgment and execution, had he gone to trial in the original
cause ;(/) yet where that is not the case, as where one or more of the instal-
ments are not payable till after the expiration of that time, it is now settled,
in both courts, that the bail are discharged. (<;) This doctrine was first intro-
duced in courts of equity ; and is founded on this principle, that every
surety has a right to come into a court of equity, and require to be per-
mitted to sue in the name of the original creditor : But if the creditor

{hh) 6 Durnf. k East, 363. T Durnf. & East, 80. 8 Durnf. & East, 27. 1 Chit. Rep. 659.
2 Taunt. 107. 5 Moore, 209. 3 Barn. & Cres. 1. 4 Dowl. & Ryl. 619, S. C.

(i) 1 Chit. Rep. 659, (a). [k) 3 Moore, 305. 1 Brod. & Bing. 48, S. C.

\l) 2 Taunt. 107 ; and see 4 DowL & Ryl. 245. (w) 7 Taunt. 304. 1 Moore, 51, S. 0.

(n) Per Lord Kenyan, in Lavender v. lulner, at Lancaster, May, 1797 ; but see 4 Dowl. &
Ryl. 194.

(a) 7 Taunt. 235. 2 Marsh. 548, S. C. (6) 5 Durnf. & East, 277.

(c) 8 East, 433. {d) 15 East, 617.

\e) 1 Taunt. 161. ( f) 5 Taunt. 319. 1 Marsh. 59, S. C.

{g) 15 East, 617. 4 Taunt. 456. 5 Taunt. 319. 1 Marsh. 59, S. C. 2 Marsh. 83, S. P.
7 Taunt. 53. 2 Marsh. 383, S. C. ; and see 2 Blac. Rep. 1317. 1 Taunt. 159. 5 Barn. &
Cres. 269. 8 Dowl. & Ryl. 22, S. G.


give time to the original debtor, he thereby prevents the surety from
using his name with effect. (c///) In like manner, the courts of la\Y have
hehl, that the bail are entitled to surrender the prineipal at any time,
whenever the plaintift' himself would not be precluded from taking a pro-
ceeding against him: But if the creditor give time to the principal, he
cannot during that time take or proceed against him; neither during the
same period can the bail, who are therefore discharged:! A) And this doc-
trine applies to bail to the sheriff, as Avell as bail above. (/) It is no
ground however, for setting aside a judgment, wiiich has been signed
against bail, that the plaintiff has accepted a composition from the defend-
ant, and suspended the execution of a capias ad satisfaciendum which
had been issued against him, though it were without the know-
ledge or consent of the bail; *as they are not prevented thereby [ *29G ]
from surrendering their principal. (aa) So, where a plaintiff re-
ceives bills of exchange from a defendant, with an agreement that he
shall not be precluded from proceeding while the bills are running, the
bail are not thereby discharged. (6) It is not any defence at law, to an
action on a bond against a surety, that by a parol agreement, time has been
given to the principal :(c) And the sureties in a replevin bond are not dis-
charged, by time being given to the plaintiff in replcvin.[d)


Of Proceedings against Bail to the Sheriff, upon the Bail Bond ;
and against the Sheriff, to compel him to return the Writ, and
bring in the Body.

If bail above, when necessary, be not put in and perfected in due time,
the bail bond is forfeited: and the plaintiff' may either take an assig)nnent
of it, (a) and proceed thereon against the defendant, and his bail to the
sheriff; or he may proceed against the sheriff himself, to compel him to
return the writ, and bring in the body of the defendant. (5i)

If the bail below be sufficient, it is usual for the plaintiff to take an assign-
ment of the bail bond; which it seems he may do, even after service of the
rule to bring in the body,(c?t') or moving for an attachment ; but after he has
sued out an attachment against the sheriff, he has made his election, and

(gg) 6 Dow, 238. Moore & P. 393, S. C.

(A) Holt, Ni. Pri. 84. 7 Taunt. 126; and see 2 Bos. & Pul. 61. 1 Taunt. 159. 15 E.ast,
617. 8 Taunt. 28. 1 Moore, 457, S. C. 7 Moore, 566. 1 Bing. 164, S. C. 5 B.irn. & Ores.
269. 8 Dowl. & Ryl. 22, S. C. 18Ve3.20. 3 Price, 216, 17. 1 Madd. Chan. 234, 5.

(i) 4 Barn. & Aid. 91. {aa) 5 Taunt. 614. 1 Marsh. 250, S. C.

(h) 7 Taunt. 126. And see further, as to when, and in what cases, bail to the action are
discharged, Petcrsd. Part I. Chap. XIV.

(c) 5 Barn. & Aid. 187. 2 Chit. Rep. 336, S. C.

(rf) 6 Taunt. 379. 2 Marsh. 81, S. C. 3 Price, 214, S. C. in Error: and sec 7 Taunt. 97.
2 Marsh. 392, S. C. 7 Price, 223, S. C. in Error.

(a) Append. Chap. XIII. § 1.

(66) Gilb. C. P. 20; and see 2 Wms. Saund. 5 Ed. 60, a.b. r. 61, a. b. kc.

(cc) Robinson, asitif/ner, i^'c. v. Owen, bail o( Dunkin, M. 36 Geo. III. Poidcvin v. Ilarvey,
bail of Martclli, M. 51 Geo. III. K. B. 7 Barn. & Ores. 478. 1 Man. & Ryl. 298. S. C. 3
Bos. & Pul. 5G4, C. P. Wightw. 40G. Man. Ex. Pr. 121. Eicheq.



cannot afterw.arcls, whilst the attachment remains in force, take an assign-
ment of the bail bond :{dd) And, in the Common Pleas, if bail above be
put in and justified in due time after the sheriff is ruled to bring in the
body, the court will set aside the proceedings in an action upon the bail
bond, commenced previous to the time of justification :(e) So that the plain-
tiff, in that court, is not at liberty to proceed on the bail bond, pending
the rule to bring in the body. Jjut where the sheriff's ofiicer, on the
attachment being lodged, prevailed on the plaintiffs to withdraw it, and
take an assignment of the bail bond, which the plaintiffs, in order to
relieve the sheriff, accordingly took, and commienced an action thereon,
the court of King's Bench held, that the plaintiffs might abandon their
attachment in this case, and then take an assignment, and proceed on the
bail bond.(/) And, in the Exchequer, where the attachment against the
sheriff has been set aside for irregularity, it is no bar to an assignment of
the bail bond.(^)
Before the statute for the amendment of the law,(7i) the sheriff was not
compellable to assign the bail bond;(z) though if he had not as-
[ *298 ] signed it, the *court would have amerced him :{a) and the old way
was, first to give a rule for the sheriff to bring in the body, before
the plaintiff could take an assignment of the bail bond. (5) Another mis-
chief at common law was, that after an assignment of the bail bond, the
action thereupon must have been brought in the name of the sheriff, who
might have released it, and thereby driven the plaintiff into a court of
equity.(c) To remedy these inconveniences, it was enacted by the above
statute, that "if any person or persons shall be arrested, by any writ, bill
or process, issuing out of any of the courts of record at Westminster, at
the suit of any common person, and the sheriff or other officer take bail
from such person, against whom such writ, bill or process is taken out,
the sheriff or other officer, at the request and costs of the plaintiff in such
action or suit, or his lawful attorney, shall assign to the plaintiff in such
action, the bail bond or other security taken from such bail, by indorsing
the same, and attesting it under his hand and seal, in the joresence of two
or more credible witnesses, which may be done without any stamp : and
if the said bail bond or assignment, or other security taken for bail, be
forfeited, the plaintiff in such action, after such assignment made, may
bring an action and suit thereupon in his own name ; and the court where
the action is brought may, by rule or rules of the same court, give such
relief to the plaintiff and defendant in the original action, and to the bail,
upon the said bond or other security taken from such bail, as is agreeable
to justice and reason ; and that such rule or rules of the said court shall
have the nature and effect of a defeazance to such bail bond, or other
security for bail." This act, and all the statutes of jeofails, are extended
by the 24th section, to all courts of record in the counties palatine of
Lancaster, Chester, and Durham, and the principality of Wales, and to
all other courts of record within this kingdom. ((i) And, by the statute 6

(dd) Cunningham v. Chambers, E. 45 Geo. III. K. B. ; and see 1 Chit. Rep. 394, in notia.

{e) 3 Bos. & Pul. 564 ; and see 7 Moore, GOO. 1 Bing. 181, S. C.

(/) 15 East, 215. [g) Wightv^. 406.

(A) 4 & 5 Ann, c. 16, § 20. {i) 1 Mod. 228.

(«) 1 Sid. 23. 2 Mod. 84. [h] 1 Salk. 99. (c) Gilb. C. P. 2.

{d) And see tlie statute 22 Geo. II. c. 4G, § 35, for the assignment of bail bonds, on pro-
cess issuing out of the court of Session of Chester, and the court of Common Pleas at Lan-
caster, and the proceedings thereon.


Geo. IV. c. 108, § 00, where persons arrested by capias, at the king's
suit, give bail, the sheriflf is required to assign the bail bond to the king,

Online LibraryWilliam TiddThe practice of the Courts of King's Bench and Common Pleas, in personal actions, and ejectment : to which are added, the law and practice of extents, and the rules of court, and modern decisions, in the Exchequer of pleas (Volume 1) → online text (page 54 of 120)