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1827.

WHITTLE

V.

OLDAKER.

attached until the seventh day after the granting of the rule for bringing in the body; but the bail was perfected a day sooner, namely, on the sixth day after the granting of that rule: on which day the defendant might have been rendered, and the bail thereby wholly protected. It will, doubtless be contended, on the other side, that the old rule of court, of Easter term, 5 Geo. 2 (a), requires justification of bail within four days after exception; but more recent rules of Court, and the modern practice also, have allowed the sheriff six days to bring in the body and then the principle already adverted to, namely, that the defendant shall be allowed the same time for perfecting his bail, as the sheriff is allowed for bringing in the body, comes into full operation. Upon the same principle the rule of Court of Trinity term, 33 Geo. 3 (b), allows the bail the same time to render the defendant, as the sheriff is allowed to bring in the body. The case of Bond v. Evans (c), may also be relied on by the other side. It was certainly there held, that if bail do not justify within four days after exception, the plaintiff may proceed upon the bail bond, even though the

(a) Which orders, "That in every action in this Court, where special bail is put in, and an exception is entered against the said bail, and notice of such exception is given in writing to the defendant's attorney, the defendant shall procure the said bail to justify (if the notice be given in term time) within four days next after such notice, or shall add other bail, who shall justify within the said four days; but if such exception be entered in vacation time, and notice thereof be given in like manner, the bail put in, or other additional bail, shall justify upon the first day of the subsequent term.”

(b) Which recites that, " by the present practice of this Court, the

bail put in for the defendant in any action cannot render such defendant, after a rule has been granted against the sheriff to bring in the body, before such bail have justified themselves in open Court ;" and orders, "that from and after the last day of this term, bail shall and may be at liberty to render the defendant, notwithstanding such rule, at any time before the expiration thereof; the attorney for the defendant giving notice of such render to the plaintiff's attorney without delay, and making affidavit thereof."

(c) 7 D. & R. 374; 4 B. & C. 864.

.

bail were put in earlier than was necessary; but it was
also held that the plaintiff cannot attach the sheriff till
the rule for bringing in the body has expired: and as it
does not appear that there were any proceedings against
the sheriff in that case, the result of it seems to be that
the plaintiff is entitled to proceed upon the bail bond, in
the event of the bail not justifying within four days after
exception, in those cases only where the sheriff has not
been ruled to bring in the body, and then, that case has
no application to the present. And this is consistent
with good sense; for if the plaintiff can be allowed to
proceed upon the bail bond at the end of the four days,
while he has a rule pending against the sheriff, which
has then two days to run, all the principles upon which
the present practice is founded must be violated, and this
absurdity will follow, that the bail may render the de-
fendant, although the defendant cannot justify his bail,
on the sixth day. The present practice, as it has been
long settled and acted upon, seems to be this :-In town
causes, the question with respect to the difference between
the four days and the six cannot arise.
In country
causes, the defendant is allowed six days to put in bail;
then, if the bail are excepted to, he is allowed four days
more to justify them, if the plaintiff has not ruled the
sheriff to bring in the body, but if the plaintiff has ruled
the sheriff to bring in the body, then, in all cases, whether
town or country, the defendant is allowed the same time
for perfecting his bail, as the sheriff is allowed for bring-
ing in the body.

Marryat and Reader, contrà. The recent case of Bond v. Evans (a), is directly in point with the present, and is decisive to shew that the plaintiff was regular in proceeding upon the bail bond. The Court there decided the practice, after mature consideration, to be, "that the defendant is bound to justify his bail within four days after exception, even though the bail may have been put (a) 7 D. & R. 374; 4 B. & C. 864.

1827.

WHITTLE

v.

OLDAKER.

1827.

WHITTLE

บ.

OLDAKER.

in earlier than was necessary; and that if he does not, the plaintiff may take an assignment of the bail bond and proceed against the bail immediately, although he cannot attach the sheriff until the rule for bringing in the body has expired." [Bayley, J. There were no proceedings against the sheriff in that case; here there are]. The rule of Court of Easter term, 5 Geo. 2, requires the bail to justify within four days after exception; and that was not done here: but, on the contrary, the bail bond was assigned before the justification of the bail. [Bayley, J. But it was not put in suit till after the justification of the bail]. The defendant here was bound to justify his bail within four days after exception; those four days expired on Saturday the 10th of February, on which day the bail did not justify his default, therefore, was complete on that day, and it surely cannot be contended that the justification of the bail, after default committed, can prevent the bail bond being assigned and put in suit. [Bayley, J. But where the plaintiff rules the sheriff to bring in the body, does he not virtually extend the time for justifying the bail from four days to six ?] The defendant carried in a false recognizance roll; for the roll was made up as of the first day of the term, whereas the writ was not returnable till the sixth day: therefore he practised a gross fraud upon the plaintiff. [Bayley, J. There is nothing in that both the writ and the recognizance relate back to the first day of the term. Was the plaintiff's writ sued out before or after the service of the allowance of bail?] That does not appear; both acts were done on the same day but which preceded the other is not stated in the affidavits.

BAYLEY, J.-This is a very important point of practice; for actions on bail bonds may be, and I am fearful too often are, made great engines of oppression. It is not desirable to decide so important a case in the present state of the Court (a), therefore we shall take time for con(a) Lord Tenterden, C. J., and Littledale J. were absent.

sideration, and shall consult the other Judges. If the bail was perfected in due time, it is quite clear that the defendant might enter an appearance on the record as on the day on which the writ was returnable; therefore, if the bail in this case had been perfected on the Saturday, the defendant would have been right. Whether he was bound to perfect his bail on that day, or had till the Monday to do so, is the question in the case; and we shall consider further before we decide it. At present, I am by no means satisfied, that if the plaintiff rules the sheriff to bring in the body, he does not thereby waive his original right against the bail.

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BAYLEY, J., who after briefly stating the facts and dates in the case, thus proceeded.-We are all of opinion that the bail in this case were perfected in due time, and consequently that the plaintiff's proceedings upon the bail bond were irregular. The principle upon which we have formed this opinion, was laid down in the case of Wright v. Walker (a), where the Court of Common Pleas held, that bail above being put in and justified within four days from the ruling the sheriff to bring in the body, all proceedings upon the bail bond commenced previous to the justification, were irregular, and might be set aside: though if the time for perfecting the bail in that case had been calculated from the day of excepting to them, they would clearly have been too late. The same point was decided in Blackford v. Hawkins (b), although, in the reports of that case, the decision is treated as proceeding on the ground that the plaintiff, by ruling the sheriff to bring in the body, makes his election not to proceed upon the bail bond, within the time allowed to the sheriff. We have examined the affidavits in both those cases, and they both appear to be similar in their dates and circum(a) 3 Bos. & Pul. 564. (b) 7J. B. Moore, 600; 1 Bingh. 181.

1827.

WHITTLE

v.

OLDAKER.

1827.

WHITTLE

บ.

OLDAKER.

stances, and to have been decided upon the same ground. The case of Bond v. Evans (a), however, was relied upon in argument as decisive in favour of the plaintiff in this case, and certainly, according to the reports of that case, it does appear distinguishable from those which I have mentioned. But we have examined the affidavits in that case also, from which it appears that no point was made there with reference to the rule for bringing in the body; nor have I, personally, who am represented as delivering the judgment of the Court, any recollection of having said any thing upon that subject. The facts of that case, however, appear to us perfectly consistent both with the decision there, and with our decision in the present case There was a rule to return the writ there, but it does not appear that there was a rule to bring in the body; consequently, the defendant there was bound, according to all the cases, to justify his bail within four days after exception. The principle, therefore, remains unshaken by that case, and we consider it to be this:-if the plaintiff rules the sheriff to bring in the body, he thereby gives the defendant the same time for justifying his bail, as the sheriff has for bringing in the body; but if the plaintiff does not rule the sheriff to bring in the body, the defendant must justify his bail within four days after exception. We are of opinion that this is the proper general rule to be laid down, and that great inconvenience and mischief would result in country causes from a contrary practice. The ruling the sheriff to bring in the body does not bind the plaintiff down to proceed against the sheriff by attachment, because, after that rule has expired, he may, if he chuses, proceed upon the bail bond. For these reasons, we are of opinion, that the proceedings upon the bail bond in this case are irregular, and consequently, that this rule, for setting aside the judgment "that the defendant has produced the record of appearance," ought to be discharged.

Rule discharged.

(a) 7 D. & R. 374; 4 B. & C. 864.

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