trader; the certificate, by the statute 6 Geo. IV. c. 16, (d) being made sufficient evidence of the trading, &c.(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 plaintiff an opportunity of trying, by an issue, whether the certificate were fairly obtained. (f) If the bail do not apply to enter an exoneretur on the bail-piece, till after proceedings have been had against them, they can only be relieved on payment of costs.(gg)

Where the defendant was under sentence of transportation for a felony, the court permitted an exoneretur to be entered on the bail-piece. (hh) So, where the defendant being a seaman, and having been holden to bail on mesne process, for a debt under 207., was impressed into the king's service, the court, on application of the bail, ordered an exoneretur to be entered.(1) 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, (7) 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. (m) 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, (n) would not, without an [*293] actual surrender, allow an exoneretur to be entered on the *bailpiece.(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 possibly 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) 126; and see stat. 5 Geo. II. c 30, 7, 13. Ante, 212.

(ee) 1 Barn. & Ald. 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, 27, 13, after great argument, contra. see Ed. B. L. 415.

(f) 6 Taunt. 75; and see 5 Moore, 331. (99) 2 Chit. Rep. 104. 14 East, 599.

S. C. Ante, 288.

(hh) 6 Durnf. & East, 247.

(k) 33 Geo. III. c. 4. Ante, 215, 16. (m) 6 Durnf. & East, 50, 52, 246.

(a) 7 Durnf. & East, 226.

15 East, 78.

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

1 Barn. & Ald. 332. 8 Taunt. 28. 1 Moore, 457,

(i) 7 East, 405; and see 1 Bur. 339.

(2) 7 Durnf. & East, 517.

(n) Ante, 287.

(b) 43 Geo. III. c. 155.

whose condition has been so changed, by operation of law, as to put it out of their power to perform the alternative of their obligation, without any default, laches, or possible collusion on their part. (d) The practical modes of relief which the courts have adopted for that purpose, are these three: first, in cases of total impossibility, it is effected by ordering an exoneretur 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,)(f) 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.(g) And the short result of all the determinations seems to be, that wherever the court cannot absolutely exonerate the bail, and, either from the constitution 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 practicable 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.(h) 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 plaintiff. 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. (b) 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 :(e) But in the King's Bench by bill, or in the Common Pleas,(dd) the declaring in a different county from that in which the writ issued, is not deemed a waiver of bail. So, the bail are discharged, if theplaintiff declare against the defendant for a different cause of action from. what is expressed in the process.(ee) But, in the Common Pleas, a variance between the writ and count, (the ac etiam being in case on promises, but the declaration in debt,) is not a ground for entering an exoneretur on the bail-piece, where the sum sworn to is under 401.(f) The affidavit to hold to bail must also correspond in substance with the process :(gg) 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 notis.

(e) 7 Durnf. & East, 517.

(g) 13 Price, 525, in notis. (a) 2 New Rep. C. P. 404.

(ƒ) Ante, 287.

(h) Id. 532, 3, in notis.
(b) 1 Chit. Rep. 281.

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

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

(ee) Per Cur. M. 43 Geo. III. K. B. 3 Wils. 61.

2 H. Blac. 278. 2 Bos. & Pul. 358. 5.

Moore, 483; and see 2 East, 305; but see 2 Moore, 301. 8 Taunt. 304, S. C. 7 Moore, 362.

1 Bing. 68, S. C. 8 Moore, 33.

1 Bing. 206, S. C.

(f) 1 H. Blac. 310. Ante, 150.

(99) 1 Chit. Rep. 659, (a).

in the affidavit, 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.(?) And it is too late to move to enter an exoneretur on the bailpiece, on the ground of a variance between the declaration and affidavit to hold to bail, after bail put in and justified, declaration delivered, plea demanded, and time allowed for pleading.(k) In the Common Pleas, bail are not liable, where the declaration consists of several counts, unless the plaintiff recover for the cause of action specified in the affidavit.(1) 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. (n) But where the plaintiff, having 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 discharge the bail, but left them to move to set aside any proceedings 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: (b) And accordingly, where the defendant 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 instalments 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, quà 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 consent, 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; (f) yet where that is not the case, as where one or more of the instalments are not payable till after the expiration of that time, it is now settled, in both courts, that the bail are discharged.(g) This doctrine was first introduced 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 permitted to sue in the name of the original creditor: But if the creditor

(hh) 6 Durnf. & East, 363. 7 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). Moore, 305. 1 Brod. & Bing. 48, S. C.

(k) 3

(7) 2 Taunt. 107; and see 4 Dowl. & Ryl. 245. (n) Per Lord Kenyon, in Lavender v. Kilner, at Ryl. 194.

(a) 7 Taunt. 235. 2 Marsh. 548, S. C.

(c) 8 East, 433.

(e) 1 Taunt. 161.

(g) 15 East, 617.

4 Taunt. 456. 5 Taunt. 319.

(m) 7 Taunt. 304. 1 Moore, 51, S. C. Lancaster, May, 1797; but see 4 Dowl. &

7 Taunt. 53. 2 Marsh. 383, S. C.; and see 2 Blac. Cres. 269. 8 Dowl. & Ryl. 22, S. C.

(b) 5 Durnf. & East, 277.
(d) 15 East, 617.

(f) 5 Taunt. 319. 1 Marsh. 59, S. C. 1 Marsh. 59, S. C. 2 Marsh. 83, S. P. Rep. 1317. 1 Taunt. 159. 5 Barn. &

give time to the original debtor, he thereby prevents the surety from using his name with effect.(gg) In like manner, the courts of law have held, that the bail are entitled to surrender the principal at any time, whenever the plaintiff himself would not be precluded from taking a proceeding 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:(h) And this doctrine applies to bail to the sheriff, as well as bail above.(i) It is no ground however, for setting aside a judgment, which has been signed against bail, that the plaintiff has accepted a composition from the defendant, and suspended the execution of a capias ad satisfaciendum which had been issued against him, though it were without the knowledge or consent of the bail; as they are not prevented thereby [ *296 ] from surrendering their principal.(aa) So, where a plaintiff receives 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. (b) 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 discharged, by time being given to the plaintiff in replevin.(d)

*CHAPTER XIII.

[*297]

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 assignment 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.(bb)

If the bail below be sufficient, it is usual for the plaintiff to take an assignment of the bail bond; which it seems he may do, even after service of the rule to bring in the body, (cc) 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.

617.

(h) Holt, Ni. Pri. 84. 7 Taunt. 126; and see 2 Bos. & Pul. 61. 1 Taunt. 159. 15 East, 8 Taunt. 28. 1 Moore, 457, S. C. 7 Moore, 566. 1 Bing. 164, S. C. 5 Barn. & Cres. 269. 8 Dowl. & Ryl. 22, S. C. 18 Ves. 20. 3 Price, 216, 17. 1 Madd. Chan. 234, 5. (i) 4 Barn. & Ald. 91. (aa) 5 Taunt. 614. 1 Marsh. 250, S. C.

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

(e) 5 Barn. & Ald. 187. 2 Chit. Rep. 336, S. C.

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

(a) Append. Chap. XIII. 1.

(bb) Gilb. C. P. 20; and see 2 Wms. Saund. 5 Ed. 60, a. b. c. 61, a. b. &c. (cc) Robinson, assignee, &c. v. Owen, bail of Martelli, M. 51 Geo. III. K. B. Bos. & Pul. 564, C. P. Wightw. 406.

bail of Dunkin, M. 36 Geo. III. Poidevin v. Harvey, 7 Barn. & Cres. 478. 1 Man. & Ryl. 298, S. C. 3 Man. Ex. Pr. 121. Excheq.

cannot afterwards, whilst the attachment remains in force, take an assignment 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 plaintiff, in that court, is not at liberty to proceed on the bail bond, pending the rule to bring in the body. But where the sheriff's officer, 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 commenced an action thereon, the court of King's Bench held, that the plaintiff's might abandon their attachment in this case, and then take an assignment, and proceed on the bail bond.(f) 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.(g)

Before the statute for the amendment of the law, (h) the sheriff was not compellable to assign the bail bond; (i) 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. (b) Another mischief 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 presence 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. (d) And, by the statute 6 (dd) Cunningham v. Chambers, E. 45 Geo. III. K. B.; and see 1 Chit. Rep. 394, in notis. (e) 3 Bos. & Pul. 564; and see 7 Moore, 600. 1 Bing. 181, S. C.

(ƒ) 15 East, 215.

(h) 4 & 5 Ann, c. 16, 20.

(a) 1 Sid. 23. 2 Mod. 84.

(b) 1 Salk. 99.

(g) Wightw. 406.
(i) 1 Mod. 228.
(c) Gilb. C. P. 2.

(d) And see the statute 22 Geo. II. c. 46, 35, for the assignment of bail bonds, on process issuing out of the court of Session of Chester, and the court of Common Pleas at Lancaster, and the proceedings thereon.