What will be a discharge of the recognizance. Upon the removal of an indictment by certiorari from the sessions, into the Court of King's Bench, we have seen that a prosecutor is not entitled to costs, unless he be either the party really injured, (x) or a civil officer, prosecuting those offences which are strictly incidental to his official capacity. The prosecutor of an indictment for stopping up a public footway, which he has been accustomed to use, has been held to be a party injured within the statute; (y) and so have persons who prosecuted a defendant for keeping a steam engine, emitting noxious vapours near their houses; (2) but a person who preferred an indictment merely for an attempt to commit a crime, and a justice of the peace who prosecuted a gaoler to conviction, for suffering a charged felon to escape, were holden not to be individually injured within the meaning of the act. (a) It has, however, been since determined, that a justice of the peace who indicts a road for being out of repair, is entitled to costs under this statute; for though this indictment might have been prosecuted by a private individual, as well as by a magistrate, it was nevertheless instituted as part of the prosecutor's duty. (b) The Court of King's Bench having the King's privy seal for that purpose, may give the third part of the fine imposed upon a defendant after conviction, upon an indictment in that court, to the prosecutor, by way of re (r) The not endorsing the prosecutor's name upon the indictment, does not affect his title to costs, provided it be proved that he is a person comprehended within the third section of the statute of 5 & 6 W. & M. Rex v. Smith, 1 Burr. 54. See Rex v. Kettleworth, 5 T. R. 33. s. c. Nol. Rep. 153. Sed vide Rex v. Sharpness, 2 T. R. 47. Rex v. Williamson, 7 T. R. 32. (2) Rex v. Dewsnap, 16 East, 199. น. (a) Rex v. Strong, 1 Wils. 139. Rex v. Smith, 1 Burr. 54. Rex v. Sharpness, 2 T.R.47. (6) Rex v. Kettleworth, 5 T. R. 33. s. c. Nol. Rep. 153. Rex v. Williamson, 7 T. R. 32. Rex v. Dewsnap, 16 East, 194. be a dis the recog imbursing him the costs of the prosecution. But if the What will prosecutor of an indictment has received a third part of charge of the fine, and then applies for his costs, under the recognizances nizance entered into by the defendant, pursuant to the 5&6 W. & M., upon removing the indictment by certiorari, the court will order what he has received to be deducted from the amount of the taxation; (c) but in general the payment of the fine does not discharge the recognizance for the costs. (d) It has been held, that the master of the crown-office ought only in his taxation to include the costs subsequent to the issuing of the writ. (e) If the defendant forfeit his recognizance, by not proceeding to trial at the time specified, it will not be discharged on the application of the bail, until the costs of not proceeding to trial have been paid, notwithstanding the defendant be afterwards acquitted, and taken in execution for the amount of the taxation. (f) And if the costs exceed the sum named in the recognizance, the obligation of the bail will not be discharged by payment of the sum originally specified, but it will remain in force until the whole amount is satisfied to the prosecutor, (g) As the costs, when duly ascertained by the master, become a vested debt, it has been determined, that under the statute of 5&6 W. & M., the personal representatives of the prosecutor of an indictment, are entitled to the costs taxed during the life of the latter, although no per (c) Rex v. Gouer, 1 Keb. 478. 2-Hawk. P. C. 6th ed. 301. 3T. R. 1165. 512. Rex v. Osborne, 4 Burr. 2125. Vide Regina, P. Summers. 1 Salk. 62.c. 27. s. 53. (f) Rex v. Lyon, 3 Burr. 1461. Rex v. Turner, 15 East, 572. Bac. Ab. Certiorari, D. (g) Rex v. Teal, 13 East, 4. Rex v. Turner, 15. id. 572. What will be a discharge of the recognizance. sonal demand was ever made by him. In such cases, however, the court will not grant an attachment against the defendant for non-payment of costs, but make a rule for estreating his recognizance. (h) And where a defendant has been found guilty on an indictment, which has been removed by him by certiorari under the usual recognizance, required by this statute, and has afterwards died between the verdict and the day in bank, his bail will be liable to the costs of the prosecutor. (¿) CHAPTER X. OF ESTREATING THE RECOGNIZANCE. THE various causes which operate as a discharge of the recognizance, have been already considered. If any of the conditions of that instrument be not complied with, it becomes liable to be estreated (that is, taken out from among the other records, and sent up to the Exchequer), which renders the party an absolute debtor to the crown for the sum or penalty therein mentioned. (k) But as a forfeiture of that security is frequently incurred through mere inattention and ignorance, the statute of 4 Geo. 3. c. 10. empowers the barons of the Exchequer to relieve, on petition, any person whom they may deem a proper object for indulgence. (h) Rex v. Chamberlayne, 1 T. R. 104. Rex v. Turner, 15 East, 573. Emerson v. Lashley, 2 H. Bl. 252. (i) Rex v. Finmore, 8 T. R. 409. Bac. Ab. Bail in Criminal cases, L. INDEX. ABATEMENT a party may be again arrested after judgment on a plea in, 157 persons accused of, when bailable, 489. ABORTION, PROCURING OF persons accused of, when bailable, 489. ABDUCTION persons accused of, when bailable, 489. when bailable, 497. ACCOUNT STATED defendant may be holden to bail for balance due on an, 17. - ACTIONS (See MALICIOUSLY HOLDING TO BAIL.-SCIRE FACIAS.- in what defendants may or may not be holden to bail, 17. 37. in assumpsit, 17. on an account stated, id. on bills of exchange and promissory notes, 19 after part payment. id. when payable by instalments, id. for goods sold and delivered, id. for work and labour, 21. on contracts of indemnity, id. on other special contracts, 24. for penalty on, in non-performance of an agreement, id. for stipluated damages, id. on contracts where the legality is doubtful, 26 on contracts made abroad, 27. on policies of insurance, 29. on the master's allocatur, id. in covenant, id. in debt, id. general rule, 50. on money bonds, id. on bonds for performance of covenants, id. of indemnity, 31. where the penalty is the real debt, id. on bottomry bonds, id. on bail bonds, 32. on recognizances of bail, id. on replevin bonds, 33. on awards, id. on judgments, id. before whom sworn, a judge or commissioner, 140, by whom to be made: may be made by any person having use of his reason, and feeling à Quaker, 141. one of several partners, id. the creditor's wife, id. clerk, id. servant, id. or any third person who can swear to the existence of need not state the connexions between plaintiff and the party mak- general qualities of: must be positive, 142. and perfect in itself, and not refer to facts to be ascertained from exception to the rule, that the affidavit must be positive, from the must be express, certain and explicit, 147. be intelligible, 148. be single, 149. correspond with the process, 150. in the description of the parties, id, in particular actions : in form ex contractu : in assumpsit, respecting personal property, personal services, 154. money lent, 155. paid, 156. had and received, id. interest, 157. on an account stated, 158. respecting special contracts, 159. must state the nature of the contract, id. bills of exchange or promissory notes, 160. statement of the plaintiff's interest in the bill,161. the initials of the defendant's christian name |