Garibaldo against Cagnoni
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1794 |
| Date | 01 January 1794 |
| Court | High Court |
English Reports Citation: 87 E.R. 1012
COURTS OF KING'S BENCH, CHANCERY, COMMON PLEAS, EXCHEQUER.
[266] case 381. garibaldo against cagnoni. Bail was formerly liable only when the plaintiff did not recover a greater sum than that which was laid in the action ; for if he did, the bail was thereby discharged from his recognizance; but now in the King's Bench, bail are liable to the sum sworn to and indorsed on the writ in the actions in which they became bail, and any lesser sum, and also to the casts of such action ; but in the Common Pleas, the bail-bond being taken in double the sum indorsed in the writ, they are liable to satisfy the whole debt due, to the extent of the penally.-S. C. 1 Salk. 102. S. C. Holt, 89. A conviction upon an indictment of battery being against Garibaldo, he, in consideration that Cagnoni the prosecutor would not press for a great fine, undertook to put in special bail to an action of trespass to be brought by the plaintiff for the said battery. At this time, a writ which the plaintiff Cagnoni had taken out, and returnable in Michaelmas term past, was run out ; and in Hilary term bail was put in, and, after a trial, one hundred pounds damages were given to the plaintiff. And now a scire facias being against the bail, they applied to the Court for relief; for that the ac etiam, which was by leave put in the said writ in Michaelmas term, was only forty pounds, and the bail meant to undertake for no more ; and since the plaintiff had declared to more damages, and recovered more, the bail were thereby altogether discharged : and a rule of Court said to have been made in the twenty-second year of King Charles the Second, and found by Mr. Clarke in the then secondary's book, that in case of bail, if the recovery were for more than was mentioned in the ac etiam, the bail should not be charged at all in istA actione, was very much insisted on. Holt, Chief Justice, remembered a ease of Thomson v. Collins, in which he had been of counsel, in my Lord Pemberton's time ; where in an indebitatus assumpsit the 6 MOD. 2B. MICHAELMAS TERM, 3 QUEEN ANNE. IN B. H. 1013 declaration and recovery was for more than the ac etiam; and there, though it was offered to level it with the ac etiam by entering a remitlur on the record for the rest, it waa denied them on debate. Note, In this case upon search, this rule could not be found in the clerk of the rules book. Holt, Chief Justice, said, there was reason for such a...
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