Moodie v Reid and Others
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1817 |
| Date | 01 January 1817 |
| Court | Court of Common Pleas |
English Reports Citation: 101 E.R. 1017
IN THE COURT OF KING'S BENCH.
fisher and another, Executors of Perry, against branscombe. the same against W. AND J. SlJTTON, Executors of Bowen. Friday, June, 30th, 1797. If an action be brought here against bail on a recognizance of bail taken in C. B., they have the same indulgence (of 8 days in full term after the return of the writ against them) to render the principal as if the recognizance had been taken in this Court. [3 East, 306.] In Michaelmas term last the plaintiffs sued Sir W. Lewes in C. B., in which action Branscombe and Bowen became bail above. The defendant Sir W. Lewes suffered judgment by default, and afterwards brought a writ of error here; and the judgment given in the Common Pleas was affirmed here in last Easter term. In the same term, after the return of the ca. sa. against the principal, the plaintiffs commenced separate actions here on the recognizance of bail against Branscombe and Bowen by writs returnable the last return of that term, the 29th of May. On [356] Thursday the 15th of June, Sir W. Lewes surrendered himself in discharge of his bail before a Judge of the Common Pleas (a)8, by whom he was committed to the custody of the Warden of the Fleet. The defendants obtained rules to shew cause why the proceedings in these actions against the bail should not be stayed upon payment of costs. The question in this case was whether, as these actions were brought in this Court on a recognizance of bail entered into in a cause in the Common Pleas, the bail were entitled to the same indulgence as if the actions had been commenced in the Common Pleas. Erskine, Mingay, and Grarrow, in shewing cause against the rules for the several defendants, contended that they were, because these actions being brought for a breach of a recognizance entered into in the Common Pleas the same construction must (a)1 The same witness had before proved facts which rendered the question of possession doubtful. (a)2 Vid. Tri. per Pais, 526. (a)3 In the course of the argument it was stated that as the condition of the recognizance was that the defendant, if condemned in the action, should pay the condemnation money or render himself a prisoner in the Fleet for the same, &c. it was necessary to surrender the principal in the Common Pleas, and that a surrender here would not have been a compliance with the condition of the recognizance. Hargrave v. Rogers, Cro. Jac. 97. 1018 BOLLARD V. SPENCER: 7 T. E. 357. be put on it as if the actions had been brought in that Court; that the Court in which the actions were brought could not vary the nature of the indemnity; and that according to the practice of that Court this surrender was not made in time, that practice only giving indulgence to the bail to surrender the principal on or before the quarto die post (b) of the return of the writ against them, which 'was on the 2d of June, and the surrender not being made until the 15th of June. They admitted that if the practice of this Court were to govern the case, the surrender was made in time, inasmuch as by the practice of this Court the bail have eight full days (c) in term after the return of the process against them to render the principal. And they relied on Shuttle v. Wood (d), where on debt on B. E. on a recognizance of bail taken in C. B. the Court considered that they were governed by the practice of the Court where the recognizance was taken. Gibbs, Marryat, and Peake, in support of the rule, said, that this was not a question on the construction of the recognizance, for that the recognizance was forfeited by the bail not rendering the principal before the return of the ca. sa.(e), but on the practice or rather the indulgence that is allowed to the bail by the Court in which the actions happen to be brought. That as the plaintiffs [357] had chosen to bring the actions here, they had thereby consented that the bail should have the indulgence that this Court allows to the bail. That according, to that rule of indulgence, the render was made in time, and the proceedings against the bail ought consequently to be stayed.-It was also suggested that in truth there was not much real...
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