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on the fourth day against the said Edward and Thomas, in the plea aforesaid ; and although they solemnly called, came not; and the sheriff now returnerh, that the said Edward and Thomas have not, nor hath either of them, any thing, &c. nor are they, or is either of them, found, &c. Therefore as before the sheriff was commanded that by good, &c. he should make known to the said Edward and Thomas that they be here in fiteen days of St. Martin, to thew in form aforesaid. At which day the said William cometh by his said attorney, and offered himself on the fourth day against the said Edward and Thomas, in the plea aforesaid, and they although folemnly called, came not; and the sheriff as before, now returneth, that the said Edward and Thomas have not, nor hath either of them, any thing, &c. nor are they, or is either of them found, &c. And thereupon the said William prayeth execution (as in the last judgment).
If the two fii. fa's be of different terms, If sci. fa.'s be of then the entry of the second foire facias will be different terms.
Middlesex, to wit: Heretofore, as it appeareth in the term of Saint Michae latt past, on the 713th roll, it is thus contained, Middlesex, to wit, The sheriff was commanded (to the end of the entry on the roll made on the first fcire facias and periff's return). Therefore, as before, the sheriff was commanded, that by good, &c. he should make known 10 the said Richard and Thomas, that they be here in eight days of Saint Hilary, to thew in form afore. said. At which day cometh the faid iViiliam by his said attorney (as in the last entry exactly).
If the bail appear, make a præcipe for the prothonotasies thus.
Middle fex, to wit. Appearance for Edward Precipe for ap. Legg and Thomas Flemming, bail of John Fell, ats pearance to the William Read, to a sci. fa. returnable on the mortow of All Souls; pay entry 35. 10d. This is
frequently done after the bail are fixed, to get a term; but they are not liable to costs unless they plead. 8 & 9W. 3. 6. 10. f. 3. Cooke's Rep. 109.
A memorandum minute on a 25. 60. ftamp should be filed at same time.
25 Geo. 3. c. 8o. If appearance
When the bail have appeared, deliver a declaente ed, how to ration upon treble penny ftamped paper ; give a proceed.
rule to pleat, and demand plea as in other cases; and if the declaration is not delivered four days exclufive before the end of the term, they will be
intitled to an imparlance. Declaration, Middlesex, to wit. It was commanded to the
heriff, Whereas (to the end of the entry on the roll of the second fri. fa.), as far as the sheriff's return, then say, And now here, at this day, came as well the said William by 7. H. his attorney, as the said Eduard and Thomas by 7. S. their attorney; and the said William offered bimself on the fourth day, against the said Edward and Thomas in the plea aforesaid. And upon this the said William prayeth execution against the said Edward and Themas, to be adjudged to him of the debt and damages aforesaid, according to the force, form, and effect of the said recognizance,
Esc. How to intitle N. B. The declaration may be intitled as of the declaration, term generally, for the court consider the whole
term as one day, although the sci. fa. was returnable
the last return of the term. 3 Will.154.Ward v. Gansell. When bail are
Agreed, both by the bench and bar, that fixed.
if the principal defendant dies after the return of the ca. fa. although his death be before the suing forth the first jci. fa. the bail are fixed with debt and costs in point of law, and the sci. fa.'s are only an indulgence of the court. 2 Wilf. 67.
Filewood v. Popplewell & another. What bail may
The bail may plead, that no ca. sa. ever issued plead, and what against the defendant, secundum cursum curia, Lutw. Rot
1285.; that the principal died before a ca. fa. seturned, Roll. Abr. 336. ; that the plaintiff had
other execution against him; that the defendant paid the money recovered, i Roll. 336. 1. 35. 4 & 5 Ann. c. 16. f. 12.; or that the principal furrendered himself, 3 Lev. 152. ; but they cannot plead that the principal died before the return of the sci. fa. because if he died on the day of the return of the ca. fa. the bail are liable. 1 Rell. 336. 5 Mod. 167. They may plead nul tiel record, Thom. Ent. 285. Thes. Brev. 265. or a release to the defendant. 1 Roll. 336. 1. 35.
If there be error brought by the principal, Bail not liable to which afterwards is nonprossed with costs, yet the coas in error. bail in the original action are not liable to the costs in error, but only the damages recovered in the original action, because they only became bound in that action,
Ca.fa. againsi bailin debt. The like in cafe.
George the Third, &c. George the Third, &c. To the sheriff of Middle. To the sheriff of Middlesex, greeting: We com- fex, greeting : We com
you take Edward Legg, late of take Thomas Lime, of, Lothbury, London, hosier, &c. hosier, and Richard and Thomas Fliming, Frame, of the same place, late of the same place, iron-monger, bail of plaisterer, bail of John Thomas Lee, late of IP'effFell, late of London, vint-minster, in your county, ner, if they be found in smith, if they be found in your bailiwick, and them your bailiwick, and them safely keep, so that you safely keep, so that you may have their bodies may have their bodies be- . before our justices at fore our justices at It ellWestminster, in eight minster, in eight days of days of Saint Hilary, to Saint Hilary, to satisfy satisfy William Read, 90/ Henry Bridges, 1021.175. and gol.; which several and soul. 175. ; which sums they the said Edo several sums they she said ward Legs and Thomas Thomas and Richard here. Fleming, heretofore, to tofore, to wit, in the term
wit, in the term 'of the of the Holy Trinity, in the Holy Trinity, in the twenty-third year of our twenty-third year of our reign, before Alexander reign, before Alexander Lord Loughborough and Lord Loughborough, and his companions, then our his companions, then our justices of the Bench at justices of the Bench at Westminster, severally acWestminster, severally ac- 'knowledged to owe to the knowledged to owe to said Henry, to be made the said William Read, to of their and each of their be made of their and each lands and chattels, and of their lands and chat. to the use and behoof of tels, and to the use and the said Henry, be levied, behoof of the said Wil- in a certain plea of trefliam Read be levied, in a pass on the case upon certain plea of debt upon promises, to the damage demand for 1451. against of the said Henry of 150l. the said John Fell, in our against the said Thomas same court prosecuted; Lei, in our same court
profecuted; Thomas Lee. And whereof the said John Fell was convicted,
as by the record and proceedings thereon in our same court, before our faid justices at Westminster, aforesaid, remaining, manifestly appears : And
whereupon it is confidered in our fame court, Henry. That the said William have his execution against Th!mas& Richard. the aforesaid Edward Legg and Thomas Fleming,
of the said several fums of gol. and gol. by them
in form aforesaid acknowledged, by the default Tbomas& Ricbard. of the said Edward and Thomas whereof they are
convicted ; and have there this 'writ. Witness Alexander Lord Loughborough, 'at Weftminster, the
28th day of November, &c. To he signed by
To be signed by the prothonotaries, pay 4d. seal prothonotaries,
7d, warrant 25. 4d. and to be ingrofled upon a
25. 6d. ftamped parchment. Tefatum. If a tefiatum say, after the words, by the default
of the said Edward and Thomas, “And whereupon our Sheriff of Middlesex sent to our justices at Westminfter, at a certain day' now past, that the faid
Edward and Thomas were not, nor was either of them found in his bailiwick, whereas it is teftified in our fame court, that the said Edward and Thomas lurk and fecrete themselves in your county, and have there this zurit. Witness, &c.
N. B. I advise a ca. Ja. to be sued out with the teftatum in all cases.
George, &c. To the fheriff of Middlesex, greet. Fi fa. againft ing: We command you, that of the lands and the bail in debt. chartels in your bailiwick, of Edward Legg, late of, &c. hofier, gol, and of the lands and chattels in your bailiwick, of Thomas Fleming, gol. which Said several sums they the said Edward Legg and Thomas Fleming, heretofore, to wit, in the term of the Holy Trinity, in the twenty-third year of our reign, before Alexander Lord Loughborough and his companions, then our justices of the Bench at Weftminster, severally acknowledged to owe to William Read, to be made of their, and each of their lands and chattels, and to the use and behoof of the said William be levied, in a certain plea of debt *
upon demand for 1451. against John Fell, * Trespass on late of, sc. vintner, in our fame court prosecuted, the case to the and whereof the said John Fell was convicted, as said William of by the record and proceedings thereon in our fame 145. court, before our faid justices at Westminster aforeSaid, remaining, manifestly appear; and whereupon it is considered in our same court, that the said William have his execution against the aforeSaid Edward Legg and I homas Fleming, of the said several sums of gol. and gol. by them in form aforesaid acknowledged, by the default of them the said Edward and Thomas ; and have that money before our justices at Westminster, in eight days of Saint Hilary, to render to the faid William for the debt aforesaid, according to the force, form, and effe&t of the said recognizance, whereof they are convicted; and have there this writ. Witness, &c. Kk 2