as a payment into court upon a plea of tender, Stultz v. Heneage, 10 Bing. 561, 2 Dowl. 806, and have in a more recent case refused to allow it to be converted into an ordinary payment of money into court. Ball v. Stafford, I Hodg. 316.

In both of the above cases, the defendant must enter a common appearance, within such time as he would have been required to have put in and perfected special bail according to the practice of the court, otherwise the plaintiff may do so for him, and the cause may then proceed as if the defendant had put in and perfected special bail. 7 & 8 G. 4, c. 71, s. 2. and see 2 W.4, c. 39, Sch. No. 4, w. 2. See Hall v. Champneys, 4 Dowl. 713.

Even after a defendant has put in and perfected special bail, he may, upon motion to the court, and if the court shall so think fit, pay into court the sum indorsed on the writ, with such sum to answer costs as the court shall direct, to abide the event of the suit; and the court may thereupon order a common appearance to be entered, and an exoneretur to be entered on the bail piece. 7 & 8 G. 4, c. 71, s. 4.

When taken out by plaintiff.] If judgment afterwards be given for the plaintiff, he may, by an order of the court upon motion, take the money out of court, or so much thereof as may be sufficient to satisfy the judgment and the costs of the application; 7 & 8 G. 4, c. 71, s. 2, and see Freeman v. Paganini, 2 Dowl. 776. Johnson v. Wall, 4 Dowl. 315. Collins et al. v. Gwynne, 1 Man. & Gr. 938. Scherwinski v. Peronnet, 6 Mees. & W. 90. Know v. Duncan, 9 Dowl. 179; and he must proceed in this way, and not sue out execution for the whole amount of the judgment. Hews v. Pike, 2 Tyr. 313. Dax. Pr. Ex. 97. The rule in this case is a rule to shew cause only. Symes v. Rose, 5 Bing. 269. Lover v. Tolmin, 5 Dowl. 388. If, after thus satisfying the judgment, &c., any part of the money still remained in court, the court, upon motion, will order it to be repaid to the defendant. 7 & 8 G. 4, c. 71, s. 2.

When taken out by defendant.] If judgment be given for the defendant, or the plaintiff discontinue his suit, or be other wise barred, the court upon motion may order the money so paid into court, to be repaid to the defendant. 7 & 8 G. 4, c. 71, s. 2. Where the proceedings in the action were merely stayed, on account of the plaintiff not delivering a bill of particulars, the court refused to order the money to be thus paid out to the defendant, even although a year had elapsed. Harden v. Harbourn, 7 Dowl. 546. The rule in this case is a rule nisi only; Wild v. Rickman, 1 Har. & W. 670. Grant v. Willis, 4 Dowl. 581. Lover v. Tolmin, 5 Dowl. 3889; it must be

the subject of a substantive application, and cannot be made a part of any other rule. De Bedolliere v. Ryan, 7 Dowl. 615. Where the defendant had obtained judgment, as in case of a nonsuit, however, the Court of Exchequer granted a rule absolute in the first instance. White v. Urwin, 8 Dowl. 202, 9 Law J. 150 ex.

Lastly, it is provided that a defendant who has thus paid money into court in lieu of bail, may, by order of the court, at any time before issue joined in law or in fact, or before interlocutory or final judgment, receive the same out of court, upon putting in and perfecting special bail, and upon payment of such costs to the plaintiff as the court shall direct. 7 & 8 G. 4, c. 71, s. 3. But where a defendant paid money thus into court, under protest as to the sufficiency of the affidavit, and afterwards moved to take it out, on the ground that the affidavit was defective: the court held that he could not do so; his paying the money into court was equivalent to perfecting special bail, after which he could not make any objection to the affidavit to hold to bail. Green v. Glassbrook, 1 Bing. N. C. 516. Where bail was put in and perfected after issue joined, and a motion then made to take the money out of court: the court refused it. Hanwell v. Mure, 2 Dowl. 155. But where the motion was made before issue joined, but the cause was in such a state that issue might be joined before cause should be shewn against the rule: the court granted the rule nisi with a stay of proceedings. Bloor v. Cox, 6 Dowl. 266. Where the defendant, after paying money thus into court, became bankrupt, and his assignees applied after verdict to have it paid over to them, the court held that it could not be done. Ferrall v. Alexander, 1 Dowl. 132. Where a third party deposited the money, and after judgment, rendered the defendant, and then applied to have the money paid out of court to him: the court held that it could not be done. Bull V. Turner, 4 Dowl. 734.

5. Proceedings against bail.

The recognizance of bail being matter of record, the plaintiff may have his remedy upon it against the bail, either by scire facias or by action of debt. The bail are "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;" R. G. H. 2 W. 4, s. 21. see Vansandau v. Nash, 2 Dowl. 767; and to that extent the plaintiff may recover, together with his costs in the scire facias or action against the bail.

Ca. sa. against the principal.] No proceedings, either by scire facias or action of debt, can be had against the bail upon

their recognizance, before a capias ad satisfaciendum is taken out against the principal, lodged in the sheriff's office, and returned non est inventus. 2 Saund. 72 note. If this be not done, the bail may plead the matter to any scire facias, or action against them. Philpot v. Manuel, 5 D. & R. 615. In this last case it was holden, that the bail could not move to, set aside the proceedings on this account. But in another case in the court of Common Pleas, where an application was made to set aside a scire facias against bail for irregularity, on the ground that the ca. sa. was tested in June, though the trial did not take place until October, and it was directed to and lodged with the sheriff of Middlesex instead of the sheriffs of London that court held that although the matter might be pleaded, it might also be made the subject of summary application to the court, and they set aside the proceedings with costs. Goldney v. Laporte, 2 Bing. N. C. 456, 4 Dowl. 639, 1 Hodg. 431. and see Hovenden v. Crawther, 1 Dowl. 170. Where the proceedings against the bail were commenced on the 3d November, and the application was not made until the 13th, the court held it to be too late. Pocock et al. v. Cockerton, 7 Dowl. 21. In such a case, the affidavits may be entitled in both actions. Id.

The Uniformity of Process Act, and the New Rules, &c. have made it somewhat uncertain in what manner the ca. sa. in this case shall be framed. Formerly the writ must have been tested in term time, either in the term to which the judgment in the original action had relation, or in some subsequent term; Gawler v. Jolley, 1 H. Bl. 74; it must also have been returnable in the same or a subsequent term; and it must have had a certain number of days between the teste and return, namely, eight days at least in actions by bill, and fifteen days in actions by original. R. G. H. 2 W. 4, s. 77. But the stat. 2 W. 4, c. 39, abolished the proceeding by bill and by original. And lastly, by stat. 3 & 4 W. 4, c. 60. s. 2, it was enacted, that all writs of execution " may be tested on the day on which the same are issued, and be made returnable immediately after the execution thereof." It has been holden, however, that a ca. sa. returnable thus, cannot be made the foundation of proceedings against bail, even although a judge's order to return it have been obtained; and the court recommended that the old form of ca. sa. should in all cases hereafter be adopted. Kemp v. Hyslop, 1 Mees. & W. 58. But this does not relieve the case of much difficulty, as the old practice is at present in a great measure inapplicable. First as to the teste of the writ: as a judgment now has no relation back, but is deemed a judgment only of the day on which it is signed, whether that be in term or vacation, (R. G. H. 4, W. 4, r. 2, s. 3,) the ca. sa. must now bear teste on some day after the judgment is actually signed; See Englehart v.

Dunbar, 2 Dowl. 202; and there appears to be no objection to teste it on the day on which it is sued out, whether in term or vacation, according to the above statute, without making it returnable immediatè. Then as to the return, the writ must be made returnable, not immediatè, but on some day in the same or following term, according to the case of Kemp v. Hyslop above mentioned. And as to the number of days between the teste and return, the old rule upon the subject can scarcely be deemed a guide, as at present actions are not commenced either by bill or by original; but I think that in the Common Pleas there must be 15 days at least between the teste and the return, and in the Queen's Bench and Exchequer it will be prudent to observe the same practice, until there shall be some decisions to the contrary. In all cases it must be directed to the sheriff of the county, in which the venue in the original action was laid. 2 Saund. 72 a. and see Golney v. Laporte, 2 Bing, N. C. 456, 4 Dowl. 639, 1 Hodg. 431.

The writ must, be lodged at the sheriff's office six days at least before it is returnable, so that it may lie there four clear days, exclusive of the day on which it is lodged, and of the day on which it is returnable; 2 Saund. 72 b; and Sunday is not reckoned as one, even although it be not the last of the four. Furnell v. Smith, 7 B. & C. 693. Howard v. Smith, 1 B. & A. 528. And these four days must be the last four days before the return day. Cock v. Brockhurst, 13 East. 588. Also, in London and Middlesex, the ca. sa. must be "entered four clear days in the public book at the sheriff's office." R. G. H. 2 W. 4, s. 77. See Hutton v. Burke, 5 M. & S. 323.

As soon as the writ is returnable, get it returned non est inventus, and filed, after which you may commence proceedings against the bail. But if the defendant be really in the sheriff's custody at the time, though at the suit of another party, the sheriff will not be warranted in returning non est inventus; nor will such return warrant proceedings against the bail, and the court will set the same aside, Forsyth v. Marriot, 1 New Rep. 251. Burks v. Maine, 16 East, 2, particularly if the plaintiff knew of the defendant's being in custody at the time. Ward v. Brumfit, 2 M. & S. 238. But where the plaintiff did not know of it, and it appeared that the defendant was in custody at the suit of other persons, but by a different name from that in which he was sued by the plaintiff: Patteson, J. refused to set aside the proceedings against the bail on this ground. Briggs v. Richardson, 2 Dowl. 158.

Where a ca. sa. was sued out, and returned non est inventus, and upon the bail being sued, they rendered their principal; but the principal was afterwards again bailed, and discharged: it was holden that proceedings could not be taken against the latter bail, without suing out a fresh ca. sa. Thackray v. Harris,

1 B. & A. 212.

The court will in some cases amend the ca. sa. where it is erroneous; Englehart v. Dunbar, 2 Dowl. 202; but they will in general take care that the bail are not prejudiced by it. See Bradley v. Bailey, 3 Dowl. 111.

Scire facias.] The scire facias must issue out of the court in which the original action was brought. 2 Saund. 72 b. It may issue at any time after the return of the ca. sa. ; indeed it may issue on the very day on which the ca. sa. is returnable. Stewart v. Smith, Ld. Raym. 1567. and see Shivers v. Brooks, 8 T. R. 628. It must in all cases be directed to the sheriff of Middlesex, R. G. H. 2 W. 4, s. 80, for in that county the recognizance is presumed to be recorded. It must be tested in term time; but it is not necessary that it should be tested on the return day of the ca. sa. against the principal. Sandland v. Claridge, 1 Cr. & M. 672. It must be returnable also in term; and if it be intended to sue out one writ only, there must be 15 days at least between the teste and return; or if a sci. fɑ. and alias (which now seldom occurs in practice), then 15 days at least between the teste of the first writ and the return of the second.

The sci. fa. when sued out, must be lodged at the sheriff's office; and, like the ca. sa. against the principal, must lie there the last four clear days before the return day, exclusive of the day on which it was lodged and the day on which it is returnable. Dicas v. Perry, 2 D. & R. 869. Wilson v. Farr, 4 B. & A. 537. Forty v. Hermer, 4 T. R. 583. Williams v. Mason, 1 East, 89, n. And a Sunday, Frazer v. Miller, 1 Dowl. 141, or a dies non, Scott v. Larkin, 7 Bing. 108, is not reckoned, even although it be not the last of the four; and this, as well where scire feci is to be returned, as where the return is to be nihil. Williams v. Mason, 1 East, 89 n. Saunderson v. Brown, 6 Dowl. 9.

If the bail reside in Middlesex, they may be summoned; and this may be done now, as formerly, on the return day of the writ, at any time before the rising of the court on that day. Lewis v. Pine, 1 Cr. & M. 771. Clark v. Bradshaw, 1 East, 86. But if they reside elsewhere, and of course cannot be summoned (the sci. fa. being directed to the sheriff of Middlesex in all cases), then a notice of the sci. fa. must be given to them. Wimall v. Cook, 2 Dowl. 173.

66

Scire

As to the entry of the recognizance upon the roll, see 2 Saund. 72 b. And as to the other proceedings, see facias," post. The execution may be either joint against both of the bail, or several against each. 2 Saund. 72 b. See infra.

Action of debt.] An action of debt on the recognizance, may be brought against both of the bail jointly, or against each of