the bail, if any proceedings were had against them. (f) By prinAnd where the defendant is under sentence of trans- cipal being portation for felony, and the convict ship ready to sail, the king sent out of the court will order an exoneretur to be entered on the dom under bail piece, (g) though they will not in such case grant the alien an habeas corpus in order that the felon may be brought act, or up and rendered. (h) trans affidavit or writ, and declara ported. If the declaration materially vary from the affidavit Byvariance to hold to bail, or from the process, either in the state- between ment of the cause, or form of action, (i) or in the character in which the plaintiff sues, (k) the bail will be entitled to their discharge. For instance, if the writ tion. be in debt, and the declaration in case, (1) or where the declaration consists of several counts, if the plaintiff do not recover for the cause of action specified in the affidavit, (m) or if the affidavit be in assumpsit, and the declaration in trover, (n) or the affidavit be upon a bill of exchange, and the declaration on an order, (o) or in covenant, (p) or if no sum be inserted in the ac etiam part of the writ: (q) but no advantage can be taken by the bail of a variance between the amount of the sum mentioned in the ac etiam part of a latitat, and that stated in the declaration, (r) or between the number of defendants named in the ac etiam, and the number declared against: (s) Such variance will, however, be a ground for setting aside the declaration, &c. for irregularity.(t) Bail are also entitled to be discharged in the King's Bench, if the original writ issue into one county, and the venue be laid in another. (u) So where the (f) 13 East, 456, 7. (g) 6 T. R. 247. (h) 4 Burr. 2034. and see 6 T. R. 247. ante, 152. (i) 7 T. R. 80. 2 H. Blac. 278. 2 B. and Pul. 358. 1 Chit. Rep. 659. (a) 2 Taunt. 107. and see 2 East, 305. But see 1 Bing. 68. when declaration may vary from process. (k) 3 Wils. 61, 141. 4 Burr. 241. 6 T. R. 363. 8 T. R. 416. But see 2 Str. 1232. 2 Blac. Rep. 722. (1) 6 Taunt. 483. 2 Marsh, 185. S. C. But a variance in the form of action between the writ and declaration is immaterial, if the sum sworn (s) 1 M. and Sel. 55. per Cur. (t) 5 T. R. 722. 4 East, 589. 1 M. and Sel. 55. 1 B. and Pul. 49, 383. 1 Bing. 206. (u) 3 Lev. 235. Barnes, 116. R. E. 2 Geo. 2.(a) K.B. Aliter in C. P. R. H, 22 Geo. 3. C.P. between affidavit or writ, and declara tion. Other causes of discharge. Byvariance affidavit was for a sum certain 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 held liable only for so much as was recovered on the bill of exchange. (x) And where the bail are entitled to be discharged on account of a variance, the court will not amend the declaration, so as to hold them still liable. (y) Bail are also discharged when the plaintiff does not declare within the time appointed by the respective courts, and obtains no rule to enlarge the time for that purpose, (*) or if he declare for a cause of action, (a) or for an amount (b) not bailable, or if the cause be referred to arbitration, and no verdict taken for the plaintiff's security. (c) So when the principal is taken in execution on a ca. sa., (d) or if the plaintiff sue out a fi. fa. or elegit against the goods or lands, instead of taking the principal on ca. sa., the bail are thereby discharged, (e) provided, the whole debt and costs are levied thereon, but not otherwise. (f) The courts will likewise allow an exoneretur to be entered, when the defendant becomes a peer, (g) or a member of the house of commons, (h) pending the action; or where a defendant being out on bail on process for a debt under 201. is impressed into the king's service, (i) unless the bail have allowed the plaintiff to proceed to judgment against them. (k) But the court would not allow an exoneretur to be entered, because the defendant is unwarrantably detained by a foreign enemy, (1) or has become lunatic. (m) And when a defendant was in custody upon a charge of murder committed in Ireland, where a bill had been (x) 1 Moore, 51. 7 Taunt. 304. S. C. (y) 6 Taunt. 483. 2 Marsh, 185. S. C. (2) 1 Chit. Rep. 281. (a) 2 N. R. 404. (a) 2 Taunt. 107. and see 7 Taunt. 304. (b) Per Lord Kenyon in Lavender v. Kilner, at Lancaster, May 1797, cited Tidd, 292. 8th ed. (c) 2 Saund. 72. (b) (d) Cro. Jac. 320. 1 Lev. 226. (e) 2 Sel. 44. and see 2 Lutw. 1273. (ƒ) M. S. E. 1820. 1 Archbold's Prac. Addend. 13. (g) 1 Doug. 45. (h) Langridge v. Hood, 26 (k) 4 Taunt. 557, 8. (m) 6 T. R. 133. Lofft, 617. and see 13 East, 355. found by the grand jury against him, and application Other had been made to the secretary of state to send him causes of discharge. over there, in order to take his trial, the Court of King's Bench, though they granted a habeas corpus to bring him up to be surrendered by his bail, would not without an actual surrender allow an exoneretur to be entered on the bail piece. (n) So where the defendant was held to bail by a wrong Christian name, but plaintiff had declared against him, and bail was put in and perfected in his right name, the court would not allow the bail to object to the irregularity on a motion to enter an exoneretur on the bail piece. (0) And although bail are liable as long as their names remain on the bail piece, yet if they have been excepted to, and not justified, they may apply to the court to have their names struck out of the bail piece; and the court will stay any proceedings which may have been commenced against them upon payment of costs. (p) what time application It is advisable that the application to enter an exo- Within neretur should be made in as early a stage as possible: for after bail have been put in and justified, and a sub- to dissequent demand of a plea, and time has been allowed charge bail for pleading, it is too late to move to enter an exo- should be neretur, on the ground that the plaintiff has not declared for the cause of action sworn to in the affidavit to hold to bail. (q) (n) 7 T. R. 226. and see 15 East, 78. (o) 13 East, 273. (p) Ante, 101. (o) (p) (q). (g) 1 B. and Bing. 48. 3 Moore, 305. S. C. made. Of issuing a ea. sa. against principal. CHAPTER XIV. Method of suing Bail. HAVING pointed out the extent of liability of special bail, (a) and the means by which they may be discharged therefrom, (b) it remains only to point out the method of suing them when they are not entitled to be discharged. The engagement of special bail being to pay the condemnation money, if their principal be condemned in the action, and do not pay the same, or render himself into custody in due time; (c) or where there are several defendants if they do not all render themselves; (d) it is necessary before any proceedings are taken against the bail, that the plaintiff should manifest his intention of proceeding against the person of the principal, by suing out a ca. sa. against him, (e) directed to the sheriff of the county where the original action was laid, and getting non est inventus returned thereto. This writ should be sued out within a year after the judgment is signed against the principal, or it will be requisite to revive such judgment by scire facias previously to commencing any proceedings against the bail. (f) And where the defendant having put in and perfected bail, a ca. sa. was lodged and returned non est inventus; and proceedings being had against the bail, they rendered the principal in time, after which the defendant was bailed again and discharged; the court held that proceedings could not be had against the last bail without taking out a fresh (a) Ante, 142. Ante, 145 to 162. (d) 2 Lev. 195. 1 Vent. 315. Car. 481. Sty. 281, 323. 1 Ld. Raym. 156. 10 Mod. 267. R. E. 5 Geo. 2. reg. 3. (a) K. B. (f) 15 East, 617. Tidd, 1152. 8th ed. But see 2 Ld. Raym. 1096. Holt, 90. ca. sa.(g) And levying part of a debt under a fi. fa. does not preclude the plaintiff from afterwards issuing a ca. sa. against the defendant for the purpose charging the bail. (h) of Of issuing а са. за. against principal. allowed. But a writ of error being usually a complete super- After writ sedeas after it is allowed, the plaintiff in the original of error action cannot subsequently take out a ca. sa. against the principal, and get it returned non est inventus with a view to proceed against the bail. (i) And if such ca. sa. be sued out pending a writ of error, (k) or returned after notice of the allowance, though upon the same day, all proceedings against the bail subsequent to the allowance will be set aside on motion with costs. (1) So in the event of a ca. sa. being sued out, but not returned before the writ of error is allowed, the plaintiff cannot even call for a return of the writ after allowance; (m) notwithstanding it may previously have lain four days in the sheriff's office: (n) but under these latter circumstances the ca. sa. will be allowed to be returned so as to fix the bail when the writ of error is determined. (0) The bail of a member of parliament under the 4 Geo. 3. c. 33. cannot however be sued pending a writ of error, on the judgment against their principal. (p) And in the House of Lords it has been determined that taking out execution against the bail below, pending a writ of error in parliament, is a contempt and breach of privilege. (q) If the writ of error be not allowed until after the Before writ return of the ca. sa., the plaintiff may proceed against of error the bail notwithstanding such writ, (r) unless a rule of court be obtained to stay proceedings against the bail (g) 1 B. and Ald. 212. Sed quære, whether a defendant is entitled to be bailed after a ca. sa. has issued, id. 213. per Cur. (h) See cases cited Man. Ex. Pr. 472. (a) and see ante, 162. (i) 2 Str. 867. 2 Blac. Rep. 1183. Fitzgib. 175. 2 Ld. Raym. 1567. S. C. Willes, 271. and see Barnes, 83. 2 N. R. 458. 1 East, 662. 2 id, 438, 9. 11 id. 316. (k) 2 Blac. Rep. 1183. (m) 2 Str. 1186. 1 Wils. 16. (n) 3 T. R. 390. 2 East, 439. allowed. |