them separately; 2 Saund. 72b; but separate actions are much discouraged by the court, unless there be some reasonable cause for bringing them. The process in the action must be by writ of summons "in debt upon recognizance." It may be sued out at any time after the return of the ca. sa. against the principal, even on the same day. Shivers v. Brooks, 8 T. R. 628. And see Pinero v. Wright, 2 B. & P. 235. In the Common Pleas the plaintiff cannot have execution against bail by ca. sa; Wooden v. Moxon, 6 Taunt. 490. Troughton v. Clarke, 2 Taunt. 113; but he may in the Queen's Bench and Exchequer.

To entitle bail to a stay of proceedings pending a writ of error, the application must be made before the time for surrender is out. R. G. H. 2 W. 4, s. 84. And the court in that case will stay the proceedings against the bail, on the terms of their undertaking to pay the damages recovered, or to render the defendant, within four days of the determination of the proceedings in error, if determined in favour of the original plaintiff. Sprang v. Monprivatt, 11 East, 316. Or if the writ of error be allowed and the allowance served, before the return of the ca. sa. against the principal, so entirely is the writ of error a supersedeas, that any proceedings afterwards taken against the bail, will be irregular, and the court will set them aside with costs. Miller v. Newbald, 1 East, 662. Perry v. Campbell, 3 T. R. 390.

6. In what cases bail discharged.

If the principal be taken in execution on the ca. sa., the bail are thereby discharged.

If the bail render their principal, and give notice of render, within the time limited for that purpose by the practice of the court, they are thereby discharged. Where the plaintiff proceeds by action of debt on the recognizance, the bail may render their principal at any time within fourteen days after the service of the process upon them, but not later: and upon such render being duly made, and notice given, the proceedings shall be stayed, upon payment of the costs of the writ and service thereof only. R. G. M. 4 W. 4. If the costs be not paid, the plaintiff may proceed in his action. Horn v. Whitcombe, 5 Dowl. 328. If the proceeding against the bail be by scire facias, the bail, formerly in the courts of King's Bench and Exchequer, had, until the return of the sci. fa. if they were summoned, or until the return of the alias, if they were not, to render their principal; and in the court of Common Pleas, they had until the appearance day. How far that may now be deemed to be altered by the Uniformity of Process Act and

the New Rules, has not been decided. Where the bail are not summoned upon the sci. fa. (and we have seen, ante, p. 204, that it is only where they reside in Middlesex that they can be summoned), no judgment can be signed without leave of the court or a judge; but with such leave, it may be signed after eight days from the return of one scire facias. R. G. H. 2 W. 4, s. 81. And probably if a render were made within these eight days, the court or a judge would not give leave to sign the judgment. This point, and the subject generally, will be treated of in detail, under the title "Render."

After the original cause is out of court, the plaintiff cannot proceed against the bail; Sykes v. Banwens, 2 New Rep. 404; and a cause is now deemed to be out of court, if the plaintiff do not declare within one year after process is returnable. R. G. H. 2 W. 4, s. 35.

If the plaintiff recover for a different cause of action from that stated in his affidavit to hold to bail, the bail are discharged. Where the defendant was holden to bail on the money counts only, and the declaration also contained a count for a cause of action, for which he could not have been holden to bail without a judge's order, and the plaintiff had a verdict on the latter count only, the court held that the bail were discharged. Caswell v. Coare, 2 Taunt. 107. Thompson v. Macirone, 4 D. & R. 619, and see Edge v. Frost, 4 D. & R. 243. So where the affidavit was on a bill of exchange only, and the plaintiff recovered upon the bill, and also for goods sold, it was holden that the bail were liable only for so much as was recovered upon the bill. Wheelright v. Jutting, 7 Taunt. 304. See Taylor v. Wilkinson, 6 Ad. & El. 533. But it cannot be made the matter of a plea to a scire facias against bail, that the plaintiff has recovered for more causes of action than mentioned in his writ or affidavit to hold to bail; Taylor v. Wilkinson, 3 Ad. & El. 784; it is merely a ground for application to the court, as to the excess. Nor can the bail now move for an exoneretur, before proceedings had against them, merely on the ground of the plaintiff's having declared for a different cause of action from that expressed in the writ; Ward v. Tummon, 4 Nev. & M. 876; all that can be done in such a case is to set aside the declaration for irregularity. Id. See Coppin v. Potter, 1 Bing. N. C. 443. Formerly the bail were discharged, if the venue laid in the declaration were different from the county into which the first process issued; but this is no longer the case. R. G. H. 2 W. 4, s. 40.

If the original action be referred to arbitration, the bail are thereby discharged, unless a verdict be taken for the plaintiff. 2 Saund. 72 a.

If a writ of error be brought and allowed, before the ca. sa. against the principal is returnable, all proceedings against the

bail are thereby suspended pending the writ; and if any be taken, the court will set them aside for irregularity; Miller v. Newbald, 1 East, 662. Perry v. Campbell, 3 T. R. 390; or the bail may plead the matter to the scire facias or action. Sampson v. Brown, 2 East, 439, and see Sherratt v. Floyer, 2 Bing. 18.

If a plaintiff take a cognovit from the principal, without the consent of the bail, or one of them, Thomas v. Young, 15 East, 617. See Howard v. Bradberry, 3 Dowl. 92. Hodgson v. Nugent, 5 T. R. 277, and thereby extend the period for payment beyond that at which he might have judgment; Bowsfield v. Tower, 4 Taunt. 456. Croft v. Johnson, 5 Taunt. 319. Stevenson v. Roche, 9 B. & C. 707. Ladbrook v. Hewett, 1 Dowl. 488. See Hannington v. Beare, 4 Dowl. 256; or if he give him time in any other way, without their consent, Willison v. Whitaker, 7 Taunt. 53. West v. Ashdown, 1 Bing. 164. See Melvill v. Glendining, 7 Taunt. 126. Brickwood v. Annis, 5 Taunt. 614. Vernon v. Turby, 4 Dowl. 660. Spyer v. Carper, 5 Dowl. 448, if the time so given expire after the plaintiff could otherwise have obtained final judgment, but not otherwise: Whitfield v. Hodges, 1 Mees. & W. 679: the bail are thereby discharged. Or even if time be given with the consent of the bail, and the principal make default, a reasonable notice must be given to the bail, before any proceedings are taken against them, in order that they may have an opportunity of rendering their principal. Clift v. Gye, 9 B. & C. 422. Surman v. Bruce, 2 Dowl. 777. Charlton v. Morris, 6 Bing. 427.

If the principal become a peer, Trinder v. Shirley, 1 Doug. 45, or member of the House of Commons, Langridge v. Flood, 1 Tidd. 293, the bail are thereby discharged.

If the principal die before the return of the ca. sa., the bail are thereby discharged; but if he die after it, even before any proceedings had against the bail, Filewood v. Popplewell, 2 Wils. 61, 65, or before the ca. sa. and return are filed, Rawlinson v. Gunston, 6 T. R. 284, they are not.

If the principal become bankrupt, and his certificate be signed and allowed, before the time for rendering him has expired, the bail are thereby discharged. Mannin v. Partridge, 14 East, 599. Todd v. Maxfield, 3 B. & C. 222. Martin v. O'Hara, Cowp. 823. Johnson v. Linsey, 1 B. & C. 247. Willet v. Pringle, 2 New Rep. 190. Harmer v. Hagger, 1 B, & Ald. 332. And see Stapleton v. Macbar, 7 Taunt. 589. Or if the plaintiff prove for his debt under the fiat, as he thereby elects to take his remedy under it, and abandons his action against the principal, the bail will be discharged. See 6 G. 4, c. 16, 8. 59. Linging v. Comyn, 2 Taunt. 246. So if the principal be discharged under an insolvent act before the bail are fixed, the bail are thereby discharged; v. Bruce, 2 Chit. 105;

but otherwise, if after the bail are fixed. Shakespeare v. Phillips, 8 East, 433.

If the principal be sent out of the country under the alien act, Merrick v. Vaucher, 6 T. R. 50. See Coles v. De Hayne, 6 T. R. 52, 246. Folkein v. Criteco, 15 East, 457, or convicted of felony and sentenced to transportation, Wood v. Mitchell, 6 T. R. 247, the court will order an exoneretur on the bailpiece.

But the bail are not discharged, by their principal becoming a lunatic; Ibbotson v. Ld. Galway, 6 T. R. 133; or by the plaintiff suing out a fi. fa. against the principal, unless the debt be thereby satisfied; Stevenson v. Roche, 9 B. & C. 707; or by the plaintiff laying the venue in a different county from that mentioned in the process, R. G. H. 2 W. 4, s. 40, although formerly it was otherwise; or by the plaintiff suing in equity for the same cause, and, being there put to his election, electing to proceed in that court. Horsley v. Walstab, 7 Taunt. 235.

7. Render in discharge of bail.

In what cases.] Wherever bail to the action have been put in, such bail may render their principal, if he be at large. If he be in custody in a civil action, the bail as a matter of course may have a habeas corpus cum causâ, to bring him up, for the purpose of being rendered in their discharge; but where he was in custody in the prison of the palace court, and the action there had already been removed and sent back by procedendo, the court held that they could not grant the habeas in such a case, as the stat. 21 J. 1, c. 23, s. 3, prohibited the cause from being again removed. Lawes v. Hutchinson, 3 Dowl. 506. If he be in custody of the sheriff on a criminal account, the bail in an action in the court of Queen's Bench may have a habeas to bring him up, for the purpose of render, that court having a criminal as well as civil jurisdiction. Sharpe v. Sheriff, 7 T. R. 226. In like manner, that court will grant a habeas to the keeper of any prison, to bring up a prisoner in his custody on a criminal account, Daniel v. Thompson, 15 East, 78, if the prisoner be there for safe custody only, and not for punishment. Gunn v. Cromer, MS. T. 1825. And where the principal was a bankrupt, and was committed to Newgate by the commissioners for not satisfactorily answering certain questions, that court granted a habeas to bring him up to be rendered in discharge of his bail; the habeas issued on the crown side of the court, on which side also the render was taken, and a commitment to the marshal pro formá; and he was thereupon recommitted to Newgate, charged with the several matters. Taylor's case, 3 East, 232. The court of Common Pleas, however, having no cri

minal jurisdiction, cannot issue a habeas for such a purpose, where the principal is in custody on a criminal charge; Currie v. Kinnear, 1 Brod. & B. 23. Bennett v. Kinnear, 3 Moore, 259. Walsh v. Davies, 2 New Rep. 245. Waugh v. Ashford, 3 Dowl. 123. and see Joyce v. Pratt, 6 Bing. 377; nor will the court of Exchequer. The court of Common Pleas have also refused to grant a habeas, where the principal was in custody of the sheriffs of London under an extent from the crown, without the consent of the crown; and the crown having consented, provided the prisoner should be remanded to his former custody, the court still refused to interfere, as they doubted if they had authority to commit to any other custody than that of the warden. Hodson v. Temple, 5 Taunt. 503. So, the court of King's Bench refused a habeas, where the principal was in custody of a messenger under an order of a Secretary of State, by virtue of the Alien Act. Folkein v. Criteco, 13 East, 457. But a person enlisted, may be rendered by his bail, in their discharge. Bond v. Isaac, 1 Burr. 339.

What has now been stated, must be considered as having reference to renders, where the action is in one of the courts of law at Westminster. But where in an action in the court at Durham, the defendant's bail, wishing to render him, and not being able to do so as he was then a prisoner in the King's Bench prison, applied to the court of King's Bench for a certiorari to remove the record, in order that they might do so here the court refused it. Paterson v. Reay, 2 D. & R. 177.

A render is in all cases equivalent to a justification of bail. And, therefore, where a defendant, upon being arrested, paid the money to the sheriff, under stat. 43 Geo. 3, c. 46, (ante, p. 175,) and afterwards put in bail, but one of these being excepted to, he rendered: it was holden that he was entitled to have the money paid back to him, although the statute only gives him that right, in terms, in case he put in and perfect bail in due time. Brook v. Gunning, 9 Law J. 128 cp. 8 Dowl. 11. Harford v. Harris, 4 Taunt. 669. Chadwick v. Battye, 3 M. & S. 283.

Within what time.] A render, in order to discharge or relieve the sheriff, should perhaps be made before the expiration of the rule to bring in the body; but if it be completed at any time before the attachment is actually moved for, it will be sufficient. R. v. Sh. of Middlesex, 7 T. R. 527. Thorold v. Fisher, 1 H. Bl. 9. R. v. Sh. of Middlesex, 2 Smith, 243. R. v. Sh. of Middlesex, 1 Mees. & W. 182. But where time is given to justify, and, instead of justifying, the bail render their principal, the court will not set aside an attachment afterwards obtained, unless upon payment of costs. R. v. Sh. of Middlesex, 4 Dowl. 358. And see R. v. Sh. of Middlesex, 2 D. & R. 225. So, where the render was made pending a rule to set aside