1833. BLANEY against HOLT. bill or by original; their obligation is for the appearance of the defendant, which is not his personal appearance, but putting in and justifying special bail; the liability of these bail ought to be the same as the bail to the sheriff, who undertook to put them in: if the bail to the sheriff themselves become the special bail, it cannot be supposed that they incur a greater liability than that which they contracted to the sheriff. In Goss v. Drakeford, bail of William Harrison (a), the reporter's abstract of the case is, "semble, where the bail are let in upon terms to try the cause of the principal, the money levied to abide the event, and the bail-bond to stand as a security, the bail are not liable beyond the penalty on the bond, although the debt and costs exceed the same after the trial, and the plaintiff's debt would have been fully covered by the security when the bail was first let in to try upon terms." We think that case rightly decided, and that the abstract of it would be correct even without the intervention of the semble: the reason for which semble must have been the particular undertaking of the bail; for if an action was brought on the bail-bond itself, the bail could not be liable beyond the amount of the penalty. We, however, advert to a case of The Duke of York v. Pilkington (b) in 34 Car. 2., where it was held that the bail above might be liable to a greater amount than the bail to the sheriff. That might be so according to the ancient practice of the Court—that, in a proceeding by bill, the bail were liable to any extent; but this case does not appear to have been rightly decided, as it was (a) 2 Smith's Reports, 354. (b) Skinn. 70. after after the rule of Trinity, 22 Car. 2., which was, probably, not brought to the attention of the Court. If the sheriff has to put in special bail, his bail, in the same manner as the bail to the sheriff, relieves him by justifying in double the sum sworn to; and if an attachment be obtained against the sheriff for not bringing in the body, or, in other words, not justifying special bail, he is not liable beyond the penalty of the bail-bond and the costs of the attachment, The King v. The Sheriff of Middlesex (a). That, indeed, was a proceeding by original; but the Court, who had taken time to consider, do not put it upon that distinction; and in Jacob v. Bowes (b), above cited, the Court said that there was no difference in practice, whether the proceedings were by bill or by original. That was not the same case as the present; but we refer to it as containing the general opinion as to the practice. We do not advert to any cases decided in the Common Pleas, because, there, the bail are bound in a sum certain. We are therefore of opinion, that no rule should be granted. This case arises upon an action commenced before Easter term 2 W. 4. But the twenty-first of the new rules of Hilary term of that year, and which rules are directed to commence on the first day of Easter term following, directs that bail shall only be liable to the sum sworn to by the affidavit of debt and the costs of suit, not exceeding in the whole the amount of their recognizance; and probably, therefore, a question like the present may never arise again. Rule, for setting aside the order, refused. 1833. BLANEY against HOLT. 1833. The Mayor of within the limits of the chief office of excise in London; and that before and at the said times when, &c. the said licence was and still is in full force and effect, and that at the said times when, &c. he, the said defendant, by virtue of the said licence, did sell beer, ale, and porter by retail in the said house, but not elsewhere in the said borough; and for that purpose, and in so doing, but not otherwise or elsewhere, did carry on the said trade of an alehouse-keeper and victualler, and then and there occupied the said house for the purpose of selling beer, ale, and porter by retail therein, and therein carried on the said trade of selling beer, ale, and porter as the defendant lawfully might for the cause. aforesaid.-3. As to selling ale and beer by retail, and occupying a house, and trading for that purpose, within the borough: That the defendant at the said times when, &c. sold ale and beer within the said borough, and for that purpose occupied a house and traded within the said borough, to wit, in a certain house situate therein, under and by virtue of a certain licence before then, to wit, on the said 29th day of October, &c., duly obtained by him for that purpose under the provisions of the said act of parliament, &c., the said lastmentioned house being specified in the last-mentioned licence in that behalf, and such licence being at the said times when, &c. in full force. General demurrer to the second and third pleas. Joinder. The demurrer was now argued by Amos for the plaintiffs. The local custom is not superseded by the act 11 G. 4. and 1 W. 4. c. 64. The preamble of that statute only recites, that it is expedient to give greater facilities for the sale of beer" than are at at present afforded by licenses to keepers of inns," &c. If for contending that beer licenses, The Solicitor-General contrà. Looking at the whole statute 11 G. 4. and 1 W. 4. c. 64., it is plain the le (a) Enabling persons who have been in the land or sea service since the 29th of November 1748, to exercise trades. (6) 2 B. & Ad. 543. VOL. V. S gislature 1833. The Mayor of against BURGESS. 1833. Tuesday, 9/1.333 The statute 11 G. 4. and 1 W. 4. c. 64., for permitting the general sale of beer by retail in England, does not super of a borough, that no person the trade of an who is not a The Mayor, Bailiffs, and Burgesses of the CASE. The declaration stated that the borough of Leicester was an ancient borough, in which there had been, from time immemorial, a body corporate known by divers names of incorporation, and that Queen Elisede the custom zabeth, by her letters patent, constituted and created the burgesses of the said borough a body corporate by the name of the mayor, bailiffs, and burgesses of the borough of Leicester, and that there is, and from time whereof, &c. hath been, an ancient custom in the said borough, "that no person, not being a burgess, nor the widow of a burgess of the said borough, should carry on the trade of an alehouse-keeper within the limits of the said borough; yet the defendant, well knowing, &c., and not being a burgess of the said borough, nor having any lawful right or excuse in that behalf, but contriving, &c. heretofore, to wit, on the 30th day of March 1831, and on other days, &c., carried on the trade of an alehousekeeper within the limits of the said borough, contrary to the said custom, and against the will of the plaintiffs." The second count stated the custom to be, that no person, not being a burgess, &c., nor a person licensed by the mayor, bailiffs, and burgesses, should carry on the said trade within the borough. There were other counts, stating the custom with some variations, and charging the defendant with selling ale and beer by retail within the borough, and occupying a house, and trading for that |