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![handle is hein.slavery/ssactsengr0037 and id is 1 raw text is: PRIGMORE V. BRADLEY
practice might warrant such an application, it applied only to actions commenced by
bill ; but this was by original, and therefore ought to be governed by the same rule
of construction on the recognizance as prevails in [313] C. B., where in Dahl v.
Johnson, 1 Bos. & Pull. 205, each of the bail were holden liable to the amount of his
recognizance, which had been taken in double the sum for which the defendant had
been ordered to be holden to bail by a Judge's order. In truth, the recognizance
does not mention the sum sworn to, but each of the bail have bound themselves in
the sum of 1721. to be levied of his goods, &c. if his principal be convicted and shall
not pay what is recovered of him,-or render himself.
Lawes, in support of the rule, referred to Clarke v. Bradshaw, 1 East, 86, as in
point; the only distinction being, that there the proceedings were commenced by bill ;
but said that there was no distinction in practice between actions by bill and by
original in this respect. And
The Court (after consulting the Master) said, that there was no distinction in
practice between the two modes of proceeding; but in either case the bail were
entitled to be relieved on payment of the sum sworn to and the costs. The practice,
they observed, was founded on the rule of Court (a)' of E. 5 Gee. 2, the terms of
which were general ; whereby it was ordered, that where the plaintiff recovers a.
greater sum than is expressed in the process on which he declares, the bail shall be
liable for the sum sworn to and indorsed on the said process, or for any lesser sum
which the plaintiff shall recover. That by an extension of the rule the bail were also
liable for the costs (b).
Rule absolute.
[314] PRIGMORE against BRADLEY. Friday, May 3d, 1805. An appearance entered
after the essoign day and before the day of full term may be entered as of the
preceding term ; and therefore a non pros entered after the second term for want
of declaring before the end of such second term is good.
Marryat moved for a rule to shew cause why a judgment of non pros and execu-
tion thereon should not be set aside for irregularity with costs, and the money levied
be restored. The plaintiff proceeded by bill; the process was returnable the first
return of last Michaelmas term, and the appearance was not entered till the 22d of
January, after the essoign day of last Hilary term, the day before the commencement
of full term. And the question was, whether an appearance so entered could be
entered as of Michaelmas term preceding 7 If it might, then the non pros signed
on the 6th of March for want of declaring was regular; otherwise not. The stat.
13 Car. 2, st. 2, s. 3, enacts, that upon appearance to be entered in the term wherein
such process, &c. is returnable, the bond for appearance shall be discharged; and
unless the plaintiff shall declare before the end of the term next following after
appearance, then a nonsuit for want of a declaration may be entered. And he cited
Holmes v. White, E. 11 Geo. 3. Impey's Inst. Cler. K. B. 415 (a)2, where on a motion
to set aside a non pros, the Master was of opinion that a non pros could never be
signed unless bail were filed in the term in which the writ was returnable: and he
said, that though in practice judgments of the antecedent term were signed after the
essoign day of the next term, yet they were always dated as of the day preceding the
essoign day. But
[315] The Court (after consulting the Master) said, that till the commencement
day of full term (the 23d of January) the party was at liberty to enter his appearance
as of the antecedent term ; and therefore the non pros was regular.
Rule refused.
THE KING against REYNELL, Clerk. Saturday, May 4th, 1805. The Court refused
to grant a rule nisi for a new trial after a verdict for the defendant upon an
indictment for non-repair of a church-yard fence, which was moved on the ground
of the verdict being against evidence.
This was an indictment for the non-repair of the fences of the church-yard of the
(a)1 Rules and Orders of B. R. 10.
(b) It appeared by affidavit that the costs of this action had been paid.
(a)2 4th edit. tit. Non Pros.
1307
6 EAST, 313.](ViewImageLocal?handle=hein.slavery/ssactsengr0037&div=1&collection=&method=preview&ext=.png&size=3)