ON RECOGNIZANCES OF BAIL. having been by capias in assumpsit. (n) the queen, before the queen herself here, at Westminster, in the county of Middlesex, in his proper person, and then became pledge and bail for one E. F., that if the said E. F. should happen to be convicted at the suit of the plaintiff (o) in an action upon promises, to the damage of the plaintiff of £- [or if in debt, "in a certain action of debt for £—‚”] then depending in the said Court by and at the suit of the plaintiff against the said E. F., then the defendant consented and agreed that all such damages [or if in debt, "that as well the said debt as all such damages,"] as should be adjudged unto the plaintiff in that behalf, should be made of his lands and chattels, and levied to the use of the plaintiff, if it should happen that the said E. F. should not pay unto the plaintiff those damages, [or if in debt, "the said debt and damages,"] or render himself on that occasion to the prison of the Marshalsea of our lady the queen, before the queen herself. (p) As by the record of the said recognizance still remaining in the said Court fully appears. And although the plaintiff afterwards, that is to say, on &c., before a judge at chambers, for a scire facias in the former case must be in the county in which the Court sits, in the latter it may be either in that county, or in the county in which it is taken; Hob. 195; 2 W. Bla. 768. In an action on a recognizance of bail, taken at Durham before a commissioner there, the venue was laid in Middlesex, and it was held properly so, because the recognizance was filed, and must be ultimately returned there; 2 J. B. Moore, 66; 8 Taunt. 171, S. C. (n) The above form is upon a recognizance of bail taken upon a writ of capias since the 2 Will. 4, c. 39, and will apply in each of the superior Courts; and see forms of scire facias on similar recognizance, Tidd's Forms, and T. Chitty's Forms, 5th edit. See the older forms, 2 Chitty on Plead. 5th edit. 312 to 336. In framing the declaration care must be observed to describe the recognizance accurately. See bail-piece and concise form of recognizance, and forms of entry of recognizance on the roll, from which the declaration in either Court is to be framed, 3 Chitt. Gen. Prac. by Lush, 316, and T. Chitty's Forms, 5th edit. 2 Ld. Raym. 966; 5 East, 461. See an old form in scire facias, Tidd's Forms, 6th edit. 502, 510; 2 Mod. Ent. 243; 7 Went. 54 to 88; Id. Index, 549; Morg. Prec. 537. See a form on a recognizance taken before a commissioner at Durham, 2 J. B. Moore, 66; 8 Taunt. 171, S. C. The conusee of a recog nizance may have an action of debt or a scire facias; and he may have an action of debt upon the judgment obtained upon the recognizance, 2 Leon. 14; and although he has before obtained judgment, and has had execution awarded, he may again proceed upon the instrument itself, for both the recognizance and judgment are matters of record and of equal degree, and one cannot be determined by the other; Cro. Eliz. 608, 817, accord; 1 Roll. Ab. 601, lib. 10 to 20, contra. If the tenor only of a recognizance taken in Chancery be removed into another Court, the conusee must bring an action of debt, and cannot have a scire facias. A scire facias cannot be awarded unless the Court is in possession of the record itself. If the recognizance has been entered into in pursuance of an order of the Court of Chancery, that Court will compel the conusee to sue by a scire facias in Chancery; 1 Vern. 313. If the bail be bound jointly and severally, the action may be brought against one of them only; Cro. Jac. 45. (o) See the form of entry of recognisance, of which this declaration should be a description, T. Chitty's Forms, 5th edit. It should be stated at whose suit the defendant became bail, and for what sum, &c.; 1 Wils. 284; Willes, 19, n. (a); Com. Dig. Pleader, 2 W. 10. As to variance, see 11 East, 516. (p) Before the former numerous writs were abolished by 2 Will. 4, c. 39, the description of the recognizance was to be taken from the entry of the recognizance by bill, with which it should precisely correspond. See Tidd's Prac. Forms, 107, 6th edit. Though the recognizance were taken before a judge at chambers, it was the practice to enter it as if it were taken in Court; 4 B. & C. 407. Where the condition was not incorporated in the recognizance, it was not necessary to set it out in the declaration or scire facias; Barnes, 93, 339; Willes, 18. It must have been stated accurately before whom and where the recognizance was taken, Where the recog nizance in K. B. was stated to have been taken before a judge at chambers, as appeared by the record thereof, when on production it appeared it was taken in Court, the variance was held fatal, though in fact the entry in the filazer's book stated it to have been taken before a judge; 4 B. & C. 403; 6 D. & R. 483, S. C. So where a recognizance in C. P. was alleged to have been taken in Court, and it appeared to have been taken before a judge at chambers, the variance was held fatal, on the plea of nul tiel record; 6 Mod. 42; Salk. 561, 659, S. C. See the present forms of entering a recognizance of bail Q. B., C. P., and Exchequer, T. Chitty's Forms, 5th edit. and which this declaration should accurately describe. See several forms of declaration on the former entries of recognizance, 2 Chitty on Pleading, 5th edit. 471 a to 482, ON RECOGNIZANCES OF BAIL. in the said Court, (q) by the consideration and judgment of the said Court, recovered (r) in the said action against the said E. F. £ for his damages which he had sustained as well on occasion of not performing certain promises [or "promise"] (s) then lately made by the said E. F. to the Judgment recovered against plaintiff, [or if in debt," the said debt, and also for his damages the principal. £which he had sustained, as well by means of the detaining of the said debt,"] as for his costs and charges by him about his suit in that behalf expended, whereof the said E. F. was convicted, as by the record and proceedings thereof still remaining in the same Court here more fully appears. (t)* Yet the said E. F. hath not paid to the plaintiff the said damages, [or if in debt, "debt and damages,"] or any part thereof, nor rendered himself on that occasion to the prison of the marshal of the Marshalsea of our said lady the queen, before the queen herself, (u) according to the form and effect of the said recognizance, and as well the said recognizance as the said judgment still remain in full force and effect, in no wise satisfied, vacated or discharged. And the plaintiff hath not obtained any execution of the said judgment, whereby and according to the form and effect of the said recognizance an action hath accrued to the plaintiff to demand and have of and from the defendant the said sum of £- in form aforesaid recovered [if by original, say" acknowledged,"] and above demanded. Yet &c. [See breach, ante, 286. ON JUDGMENTS. ON JUDGMENTS. Middlesex (to wit). (x) [Commencement in debt, ante, 284.] For that Declaration on (9) Semble, that since 2 W. 4, c. 39, it would be demurrable to state that the proceedings had been by bill; Peacock v. Day, 3 Dowl. 291; Darling v. Gurney, 2 Dowl. 101; 2 Cr. & M. 226, S. C. (r) As to variance in statement of the judgment, see 1 Taunt. 221; post, 338. The declaration need not show how judgment was obtained, it is sufficient to aver generally taliter processum fuit, that the plaintiff recovered; Cro. Jac. 46. (s) See Edwards v. Lucas, 5 B. & C. 339. (t) If the condition of the recognizance were, that the principal should appear within eight days after warning, it was necessary to aver that the plaintiff gave the warning, since that constituted a condition precedent; Cro. Jac. 46. (u) The breach must be stated according to the terms of the recognizance. Where the condition was that the principal should render himself or pay the money, the declaration must show that he had neither rendered nor paid the money; and if the plaintiff only averred that he did not render, it would be bad, for he might nevertheless have paid the money; Skin. 100. For if that were to be allowed, several executions might be taken out in different Courts upon the same record; Dyer, 369; Bro. Ab. tit. Record, 39 Hen. 6, p. 3. Where in an action against two, a recognizance of bail was given," in case the said C. and D. should happen to be condemned, and should not pay or render themselves," and a scire facias thereon, after show VOL. II. ing that C. was condemned, but not D., as id. 34. (x) The venue is local, and must be where the record is, which is now always in Middlesex; Gilb. Debt, 413; ante, vol. i. Index, tit. "Venue." It is not to be repeated in body of declaration; Reg. Gen. Hil. Term, 4 Will. 4. (y) Debt lies in the superior Courts on a judgment obtained in either of them, or in an inferior Court, and vice versa; see a form of declaration on a judgment of non pros. in Queen's Bench, for not declaring, post, 339; Gilb. Debt, 392, 393. The Courts, however, discourage actions of debt on judgment; id. ibid.; and by 43 Geo. 3, c. 46, s. 4, the plaintiff in such action is not entitled to costs, Z a final judgment ON JUDGMENTS. Whereas the plaintiff heretofore, to wit, on &c (z) in her majesty's Court of The like on a judgment in debt.(g) Queen's Bench, [or "Common Pleas," or "Exchequer of Pleas,"] at Westminster, in the county of Middlesex, (a) by the consideration and judgment of the said Court, recovered against the defendant* the sum of £—(b) above demanded, which in and by the said Court were then adjudged to the plaintiff (c) for his damages, which he had sustained as well by reason of the non-performance by the defendant of certain promises and undertakings, (d) then lately made by the defendant to the plaintiff, as for his costs and charges by him about his suit in that behalf expended, whereof the defendant was convicted, as by the record and proceedings thereof remaining in the said Court fully appears; (e) which said judgment still remains in full force and effect, (f) not reversed, satisfied, or otherwise vacated; and the plaintiff hath not obtained any execution or satisfaction of or upon the said judgment; whereby an action hath accrued to the plaintiff to demand and have of and from the defendant the said sum of £— above demanded. Yet &c. [See breach, ante, 286, and insert damages sufficient to cover interest, &c. As in the above form, to the asterisk, and then proceed as follows:] As well a certain debt of £ as also £—, which in and by the said Court of our said lady the queen, before the queen herself, [or if in Common Pleas, "which in and by the said Court of our said lady the queen of the bench,"] were then adjudged to the plaintiff for his damages which he had sustained, as well by reason of the detention of the said debt, as for his costs and charges by him about his suit in that behalf expended, whereof the de unless the Court will make an order for that (z) The term and parties, and the sum re. (a) What a variance in this, see supra, note (y). (c) The judgment must be set forth accu. rately, and a variance was formerly fatal. If the parties names be misplaced, &c. it would be bad; 7 Taunt. 271. Sed query, that was a decision on a sham plea, and see as to misnomer of parties, 1 Roll. 754, 1. 40; 7 T. R. 447. See form, 2 Chit. on Plead. 5th edit. 484, where a defendant was sued in the first action by a wrong name. (d) If the judgment was on one count only (as is usual where the action is on a bill of exchange or promissory note, and there is a reference to the master or prothonotary on a judgment by default,) instead of the words "promises and undertakings," say "promise and undertaking," otherwise there would be a variance; see 5 B. & Cres. 339; Stra. 892; 2 Stark. 7. (e) This is necessary; Co. Lit. 303 a; 1 Lord Raym. 35; 3 Salk. 565. However, the omission is only ground of special demurrer; 11 East, 565. (f) As to this allegation, see Com. Dig. Pleader, 2 W. 12. It is not necessary; Saund. 330, n. 4. (g) See 2 Mall. 186. fendant was convicted, as by the record, &c. [As in the last precedent to ON JUDGMENts. the end. Commencement as ante, 284.] For that whereas the now plaintiff, before On a judgment of non pros. in and at the time of the obtaining and giving the judgment hereafter men- Q. B. for not detioned, according to the form of the statute in such case made and provided, claring. had been served with a copy of a certain writ of our lady the queen, called a [summons,] issued out of the Court of our lady the queen, before the queen herself, and thereby requiring the now plaintiff, within eight days after the service of that writ on him, inclusive of the day of such service, he should cause an appearance to be entered for him in the Court of Queen's Bench, in an action upon promises, at the suit of the now defendant, and the now plaintiff had in due time, to wit, on &c., duly appeared in the said. action by his attorney, according to the form of the statute in such case made and provided; and the now defendant did not declare on the said writ, or otherwise in the said Court, in any personal action or ejectment against the now plaintiff, before the end of [Trinity] term, in the year of the reign of our said lady the queen, being the next term after the said appearance of the now plaintiff, at the suit of the now defendant. And thereupon such proceedings were duly had, that afterwards, to wit, on &c., it was considered and adjudged in and by the said Court of our said lady the queen, before the queen herself at Westminster, that the now defendant should take nothing by his said writ, but that he should be in mercy, &c.; and it was then further considered and adjudged in and by the said Court, that the now plaintiff should recover against the now defendant [£3. 10s.] for his costs and charges by him laid out about his defence in that behalf by the said Court of our said lady the queen, before the queen herself there, then adjudged to the now plaintiff, with his assent, according to the form of the statute in such case made and provided, as by the record and proceedings thereof remaining in the Court of our said lady the queen, before the queen herself, more fully appears; which said judgment still remains in full force and effect, not in the least reversed, anulled, set aside, paid or satisfied; and the now plaintiff hath not obtained any execution or satisfaction of or upon the the said judgment; whereby an action hath accrued to the now plaintiff, to demand and have of and from the now defendant the said sum of [£3. 10s.] above demanded. Yet the now defendant, although often requested so to do, hath not as yet paid the said sum of [£3. 10s.] above demanded, or any part thereof, to the now plaintiff, but he to do this hath hitherto wholly refused, and still doth refuse. To the damage, &c. for the defendant on verdict. Same as the form, ante, 337, 338, to the asterisk, and then proceed as follows:] On judgment The sum of £- above demanded, which in and by the said Court of our said lady the queen, before the queen herself, were adjudged to the now plaintiff and with his assent for his costs and charges by him laid out and expended in and about his defence of a certain action on promises, [or as the action was,] then lately prosecuted in the said Court by the now defendant against the now plaintiff, whereof the now defendant was convicted, as by the record, &c. [Same as the precedent, ante, 338, to the end. z 2 ON JUDGMENTS. The like on other judg ments. On a judgment recovered in For the description of a judgment of non pros. for not entering the issue— or as in case of a nonsuit-or on a nonsuit, see Tidd's forms, 6th edit. 169, 291, 314, 390; 7 Wentw. 120. A declaration in debt on judgment of inferior Court must show that the original cause of action arose within its jurisdiction; Read v. Pope, 1 Cr. M. & R. 302 See the form, Chitty on Pleading, 5th edit. 484. Q. B. when defendant was sued by a wrong name. Debt by baron and feme, adninistratrix, against baron and feme, who was also an ad ministratrix, on a judgment against intestate, revived by scire facias suggesting a devastavit. (h) Execution awarded on scire facias. For that whereas the said E. F. in his lifetime, to wit, on &c., before the Right Honourable Sir, Knt. and his companions, then her majesty's justices of the bench here, to wit, at Westminster, in the county of Middlesex, by the consideration and judgment of the said Court, recovered against the said G. H. in his lifetime, [here state the judgment, which if in assumpsit will be as in form, ante, 338, or if in debt, thus:] as well a certain debt of £shillings, which in and by the said Court of our said lady the as also queen of the bench were then adjudged to the said E. F. for his damages, which he had sustained as well by reason of the detention of the said debt, as for his costs and charges by him about his suit in that behalf expended, whereof the said G. H. was convicted, as by the record and proceedings thereof remaining in the said Court of our lady the queen of the bench aforesaid, at Westminster aforesaid, more fully appears. And thereupon afterwards, and after the death of the said E. F. and G. H., that is to say, in term, in the year of the reign of our said lady the queen, it was considered and adjudged in and by the said Court of our said lady the queen of the bench, before Sir, Knt., and others, his companions of the bench, then her said majesty's justices of the bench here, to wit, at Westminster aforesaid, in the county aforesaid, that the said A. and B. administratrix aforesaid, should have execution against the said C. and D. administratrix aforesaid, of the debt and damages, [or if in assumpsit, say "damages"] aforesaid, to be levied of the goods and chattels, which were of the said G. H. at the time of his death, in the hands of the said D. administratrix as aforesaid, before her intermarriage with the said C. to be administered, or in the hands of the said C. and D. in right of the said D. as such administratrix, since her intermarriage, to be administered by the default of the said C. and D. his wife, administratrix as aforesaid, as by the record (h) See other forms, Morg. Prec. 566, 563; 7 Went. 83, 112; 3 T. R. 685; 3 East, 2. The action of debt on a judgment suggesting a devastavit was introduced instead of the proceedings by scire fieri inquiry, and it is now usually adopted; 2 Sid. 102, 103; 1 Saund. 219 a. This action will not lie without a judgment previously obtained against the executor or administrator; see Carter, 2; 1 Vent. 321. The executor is precluded from setting up that he had not assets, unless he pleaded plene administravit to the original action, or admitted assets to a certain extent, and rien ultra, &c.; 3 T. R. 685, 689; 1 Salk. 310; 3 East, 2; the action may be brought without any writ of fieri facias first taken out; 1 Sid. 397. The law upon this subject is collected by Mr. Sergeant Williams, 1 Saund. 219; see also Williams' Exe cutors, 3d edit. 1565. The executor may be charged in the debet and detinet; 1 Saund. 216; 1 Roll. Ab. 603, ss. 24, 25, 29, but the plaintiff may waive that right, and sue the executor in the detinet only; 3 East, 6. The issue upon non detinet lies upon the defendant to prove the due administration of assets; 3 East, 2. The defendant formerly pleaded not guilty, or non debet, 2 T. R. 462; but he now usually traverses the devastavit. In debt upon a judgment by default against defendant as executor, the production of the judgment and of the testatum fi. fa., upon which the sheriff had returned nulla bona testatoris, and a levy of costs de bonis propriis, was held sufficient evidence of a devastavit; Leonard v. Simpson, 2 Bing. N. C. 176. |