damages and costs before the end of
eight days from the return of the ca.
sa. within which time by the practice
of the court they might have dis-
charged themselves by surrendering V.
their principal.

the quarto die post of the second writ to surrender the principal. Meddowscroft v. Sutton & al. 1 B. & P. 61

What else shall discharge the Bail. 1. A cognovit by the principal, without notice to the bail, does not discharge

the bail.

Hodgson v. Nugent. 5 T. R. 277 2. The court permitted an exoneretur o to be entered on the bail-piece, the defendant being under sentence of transportation for a felony.

Perigal v. Mellish. 5 T. R. 563 28. Where, after due notice of render of the principal, the plaintiff'still proceeds against the bail in the action of debt upon the recognizance, because offer was made by them to pay the costs in the suit against them, nor any rule obtained by them to stay proceedings in the action against them on payment of costs; held the subsequent proceedings irregular, being contrary to the rule of court Trin. ‚1 Ann. which says that on such notice of render all further proceedings against the bail shall cease.

3.

Byrne v. Aguilar. 3 E. R. 306 29. If proceedings be commenced upon a recognizance of bail immediately upon the return of the ca. sa, the 4. Court (C. P.) will not stay them but upon payment of the costs, though the principal be surrendered within the four days allowed by the practice of

the court.

Abbott v. Rawley. 3 B. & P. 13 O. If an action be brought in K. B. against bail, on a recognizance of bai taken in C. P. they have the same in-5. dulgence (of eight days in full term after the return of the writ against them) to render the principal as if the recognizance had been taken in K. B. Fisher v. Branscombe. 7 T. R.355 31. In the Court of K. B. the bail have eight days in which to render the principal, from the return of that writ on which there is an effectual proceeding against them.

Wood v. Mitchell. 6 T. R. 247 A seamau being out upon bail on process for a debt under 201. was impressed into the King's service, and as he would have been entitled to his discharge it in custody, by virtue of 32 G. 3. c. 33. § 22. the court on application of the bail ordered an exoneretur to be entered on the bail piece, instead of granting an habeas corpus.

Robertson v. Patterson. 7 E. R. 405. The Court of K. B. refused to order an exoneretur to be entered on the bailpiece, on the ground that the debt was contracted while the defendant was resident in a foreign country, and before he became a bankrupt by the laws of that country, though he had obtained his certificate there.

Pedder v. M Master. 8T. R. 609 Aud the court distinguished the above from the case of Ballantine v. Golding, M. 24 G. 3. 4 T. R. 185, n.) where plaintiff as well as defendant resided in Ireland at the time of the defendant's bankruptcy there. 8 T. R. 609 (And see ante, Div. 1.)

6. The court will not discharge a de

7.

Wilkinson & al. v. Vass. 8 T. R. 422 32. Therefore, where the plaintiff sued the bail on their recognizance who did not render the principal within eight days, and then the plaintiff died (after plea and demurrer in that action) and his executors brought another action against the bail; it was ruled! that the bail had eight days from the return of the process in the second action, in which to render the principal. 8 T. R. 422 33. So in the Court of C. P. where bail served with process on his recognizance died before the quarto die post, and fresh process issued against his exe-9. cutors, it was held that they had until

S.

fendant on a common appearance, on the ground of his having obtained his certificate as a bankrupt, and the debt being thereby barred, if the validity of the certificate is meant to be disputed.

Stacy v. Federici. 2 B. & P. 390 (And see ante, I. 28.)

Bail cannot plead the bankruptcy and certificate of their principal in their own discharge. Beddome v. Holbrooke, T. 39 G. 3. 1 B. & P. 450, n. Donnelly v. Dunn, ib. 2 B. & P. 45 If the principal die after the return of the ca. sa. and before the return be filed, the bail are fixed, aud the court will not stay the filing of the return in favour of the bail.

Rawlinson v. Gunston. 6T. R. 284 Where the substantive cause of action did not require special bail without

a judge's order, and the plaintiff held | 5. the defendant to bail on the money counts and did not recover thereon, the Court of C. P. ordered an exoneretur to be entered on the bail-piece.

Caswell v. Coare. 2 W. P. T. 107 10. One of two defendants having been holden to bail in Trinity term, the plaintiff proceeded to outlawry against the other, and delivered a declaration against the former on the first day of Easter term, not having obtained a rule for time to declare: the Court of C. P. held that the cause was out of court, and the bail entitled to an exoneretur. Sykes v. Bauwens. 2 N. R. 404

VI. Writ of Error; its Effects as they
relate to the Bail; and of Bail on.
1. Where a ca. sa. is returnable agains!
the principal on a particular day, be-
fore which a writ of error is allowe a
and served; that operates as a super-
sedeas to any proceeding against the
bail, though the ca. sa. has lain four
days in the office before the allowance.
of the writ of error.

Perry v. Campbell 3 T. R.390 2. A writ of error allowed is a supersedeas in law to all further proceedings in the court below; and therefore proceedings were set aside with costs for irregularity where the ca. sa. was returned after notice of such allowance though on the same day, and sci. fa. afterwards taken out against the bail. Miller v. Newbald. 1 E. R. 662 3. A writ of error, though not returned, is of itself a supersedeas; and may be pleaded by the bail to have been issued and allowed after the issuing and before the return of the ca. sa. against the principal, so as to avoid proceed ings against them in scire facias upon the recognizance of bail prosecuted af ter a return by the sheriff of non est inventus made pending such writ of error. Sampson v. Bryan. 2 E. R. 439 4. Upon a writ of error sued out by the principal after the bail are fixed, and proceedings against them in scire facias, the court will only stay proceedings against the bail pending the writ of error on the terms of the bail's undertaking to pay the condemnation money, and the costs of the scire facias, and (if it be a case in which there is no bail in error) to pay the costs also of the writ of error judgment should be affirmed.

On the quarto die post of the return of the ca. sa. against the principal the bail are fixed; and if after at time they apply to stay proceedings against themselves pending a writ of error, the Court (C. P.) will only grant the application on their undertaking to pay the condemnation money, and the costs of the action against themselves, of the application, and (where there is no bail in error) of the proceedings in error. Copous v. Blyton. N. R. 67 6. Where a writ of error is allowed before the expiration of the time permitted to the bail to render their principal, the bail are entitled to stay the proceedings against them pending the writ of error, on the terms of undertaking to pay the damages recovered, or to surrender the defendant within four days of the determination of the writ, if determined in favour of the original plaintiff.

7.

8.

Sprang v. Monprivett. 11 E. R. 316 The bail to the action are not liable to pay the costs of a writ of error.

Yates v. Doughan. 6 T. R, 283 The same persons who were bail in the Court of B. R. may justify again as bail upon a writ of error returnable in parliament.

Martin v. Justice. s T. R. 689 9. A recognizance entered into by the bail in error without the principal is

good. Dixonv. Dixon. 2 B. & P. 443 10. If on a bond debt, double the sum

secured by the bond be the sam for which the bail bind themselves in the recognizance in error, it is sufficient, though a further sum be due for inte rest and costs, and nominal damages have been recovered.. 2 B. & P. 4+3 11. Bail in error must be put in within

four days after final judgment signed, without reference to the time of the allowance, or serving the copy of it. `/

Jaques v. Nixon. 1 T. R. 279 12. A defendant has four clear days after final judgment to put in bail in error.

Bennett v. Nichols. 6 T. R. 121 13. It is not necessary under stat 3 Jac. 1. c. 8. to give bail in error on a judgment. though in debt, for goods sold and delivered, and on an account stated. Alexander v. Biss. 7 T. R. 449 14. Though such judgment were by default. Ablett v. Ellis. 1 B. & P. 249 15. Nor on such judgment on a count on a promissory note,

Trier v. Bridgman. 2 E. R. 359 Buchannan v. Alders & al. 3 E. R.546 16. To bring a case within the statute,

the court must see distinctly that a spe- 3. Although it be not necessary to state, cific contract has been entered into. in a warrant of commitment for fe1 B. & P. 249 lony, that the act was done feloniously; 17. The statute should be construed li- yet unless it sufficiently appear to the berally. 1 B. & P. 249 court that a felony has been commit18. The Court of K. B. held that bail in ted, they are bound to bail the defenerror was not necessary upon this stadant. R. v. Judd. 2 T. R. 255 tute, 3 Jac. 1. in debt on bond, eon-4. Though a warrant of commitment for ditioned for the payment of money, felony be informal, yet if the corpus and also for performing all covenants delicti appear in the depositions rein a mortgage deed. turned to the court, they will not bail, but remand the prisoner.

5.

Butler v, Brushfield. 10 E. R. 407 19. If there be one count in the declaration for which debt would not lie at the time of making stat. 3 Jac. 1. c. 8. no bail in error is required. 2 E. R. 860 Webb v. Geddes. 1 W. P. T. 540 20. Where a writ of error is brought up on a judgment on demurrer in the case 6. of a scire facias sued out pursuant to the statute 8 and 9 W. 3. c. 11. § 8. Bail in error is not required.

7.

Sparks v. O Kelly. 1 W. P. T. 168 21. As the bail in error cannot surrender the principal, they are not entitled to relief, though the principal become a bankrupt pending the wit of error. Southcoat v. Braithwaite. 1 T. R. 624 22. If a defendant in error, on judg-8. meat being affirmed, take in execution the body of the plaintiff in error, for debt, damages, and costs in error, he does not thereby discharge the bail in error, but may sue them on their recognizance. Perkins v. Petit. 2 B.& P. 440 23. Bail in error, who were excepted to and did not justify, were relieved from proceedings against them, though ro other bail had been put in; but they were made to pay the costs to the time, the plaintiff having been induced by for mer cases to proceed against them. Gould & al. v. Holmstrom. 7 E.R. 580 But see ante, Div. II.

VII. Bail in Criminal Cases. 1. Upon articles of the peace being exhibited, the court may require bail for such a length of time as they shall think necessary for the preservation of the peace, and are not confined to a twelvemonth.

R. v. Bowes. 1 T. R. 696 2. Where the court had at first required bail for fourteen years, they afterwards lessened the time to two years on its appearing to them that an information was depending against the defendant on the same account, which must necessarily be determined within that time. 1 T. R. 696

9.

R. v. Marks. 3 E. R. 157 The court have a right to bail the accused in all cases of felony, even of murder, if they see occasion, where there is any doubt either on the law or fact of the case. 3 E. R. 163, 4, 5 When the House of Lords adjudge that any matter is a breach of privi lege, their adjudication on the party accused is a conviction, and no court can bail him. R.v.Flower. 8 T.R.314 A commitment by a justice of peace for 14 days, under the vagrant act 17 G. 2. c. 5. is a commitment in execution, and the party is not entitled to be bailed. R. v. Brooke. 2 T. R. 190 The sheriff has no authority to take a bond for the appearance of persons arrested by him under process issuing upon an indictment at the quarter sessions for a misdemeanor; he can only take a recognizance for their ap pearance.

Bengough v. Rossiter. 4 T. R. 505 (Affirmed in Cam. Scac. Eyre C. J. of C. B. dissent. 2 H. B. 418 At common law the sheriff could not bail any persons indicted before justices of the peace, though he might bail those indicted before him at his torn. Stat. 23 H. 6. c. 9. was passed to compel him to take bail where he might have done, and neglected to do so. But stat. 1 Ed. 4. c. 2. takes away his power of bailing altogether, and requires him to return all indictments, taken before him at his torn, to the jus

tices at the next sessions. 4 T. R. 505 10. (But see contrà the opinion of Eyre C. J. of C. P. 2 H. B. 426.-435. who allowed however that the practice of bailing by the sheriff in such cases had been long discontinued.)

11. An action on the case on stat. 23

H. 6. c. 9. will not lie against a sheriff for refusing to take bail on an attachment out of chancery; that statute referring only to process in courts of common law. Studd v. Acton. 1 H. B, 468

L

BAKER.

1. The stat. 29 Car. 2. c. 7. does not prohibit a baker baking dinners for his customers on a Sunday.

R. v. J. Younger. 5 T. R. 449 2. Though baking bread in the ordinary course of the baker's business is an offence within that act. 5 T. R. 451 (See stat. 34 G. 3. c. 61.) 3. It is an offence within the stat. 40 G. 3. c. 18. to sell, by wholesale, bread before it has been baked 24 hours: even though the seller give directions to the person to whom he sells it, not to sell it by retail until the expiration of the 24 hours.

3. But where the act is in itself doubtful,
it may be explained.
2 T. R. 59
4. A bill having become due, and the
drawer, being pressed for payment,
desired the holder to call upon him
the next morning at a friend's house
and he would pay him, the holder
went accordingly, and was denied at
the drawer's request upon being
asked by his friend if he was aware
that he had committed an act of
bankruptcy, he answered with surprise.
in the negative, and said he did not
mean to do so, and went afterwards
and paid the bill. Lord Mansfield
told the jury that if they were satisfied
that the denial had been with a view
to delay the credit at the time, it was
an act of bankruptcy; and if so, it
could not be purged by paying the bill
afterwards.
2 T. R. 59
To make a denial to a creditor an
act of bankruptcy, the debtor must be
denied with intent to defraud or hin
der that creditor.

5.

R. v. J. Smith. 8 T. R. 5SS 4. The crown, by letters patent granted to the master and wardens of the corporation of bakers (there being four wardens), by themselves and their deputy or deputies full power to overlook and correct the trade of baking: held that the master and one warden could not justify entering the house of a baker to overlook bread; for it 6. they acted as principals, they did not amount to a majority of persons to 7. whom the power was given; and if they acted as deputies, they were bound to shew that they were appointed by the majority.

Cook v. Loveland. 2 B. & P. 31 5. Qu. Whether an authority to enter the house of a person of a particu lar trade, be incident to an authority given by charter to overlook and S. correct that trade? and Qu. whether the crown have power to grant such authority. 2 B. & P. 33

BANKRUPT.

1. Act of Bankruptcy; what shall be and its Effects by Relation.

1. Where an act is a clear unequivoca! act of bankruptcy, it cannot be explained by any subsequent circumstances. Colkett v. Freeman. 2 T. R. 59 2. Therefore where A. was denied in the morning by express orders to the holder of a bill which was due, it was a complete act of bankruptcy, though he afterwards paid the bill, before five o'clock in the same day, and though by the custom of merchants in London the payer of a bill has the whole day on which a bill becomes due, till hve o'clock, to discharge it. 2 T. R. 59

Garret v. Moule. 5 T. R. 575 "Keeping house," with that intent is not alone sufficient. 5 T. R. 575 If a trader gives a general order to be denied, and is denied to a particular creditor, it is such a beginning to keep house as will constitute an act of bankruptcy: although the trader immediately overtakes the creditor and says he was not afraid of him, but of another creditor.

Mucklow v. May.W. P. T. 479 A declaration by a bankrupt of his motives for absenting himself from his home, made at the time, is evidence in an action by the assignees against a creditor of the bankrupt, in order to prove the act of bankruptcy.

Bateman v. Bailey. 5 T. R. 512 9. In order to constitute an act of bankruptcy by a trader in departing from his dwelling-house, it is not alone sufficient that a creditor shoqld be thereby delayed, but the depatture must also have been with that intent. The word "or" in the stat. 1 Jac. 1. c. 15. must be read "and."

Fowler v. Padget. 7 T.R. 509 10. But the Court of K.B. have now decided that the departure of a creditor from his house with an intent to delay his creditors, is an act of bankruptcy, though no creditor be thereby in fact delayed.

Robertson v. Liddell, Bart. 9 E.R.487

11. It is not sufficient to constitute such | 20. But such estoppel, it seems, applies an act of bankruptcy that a sheriff's officer who comes to levy a fi. fa. on the trader's effects, is refused admit tance after the trader has left his house. Barnard v. Vaughan & al. 8 T. R. 149 12. A Trader who has no settled house.or counting-house, but takes up a temporary abode at a public-house in the place to which his business carries him, commits an act of bankruptcy by departing from such public-house with intent to delay his creditors.