burrow king versus lion Monday that Feb bail can get their recognizance  discharge without payment of cost on Thursday last the that instant Mr Clayton  on behalf of the prosecutor show cause why the recognizance of the bail shall  not be discharge the case be this lion be indict at hicksshall for perjury and  remove the indictment hither by certiorari previous to the issue whereof he  enter into recognizance with two surety as usual to appear and plead in the  next term and to give notice of trial and go to trial in or at the sit after  such next term unless the court shall otherwise direct which condition this  man be so far from perform that he neither give notice of trial nor go to  trial either in or at the sit after the then next term and in the subsequent  term though he do then indeed give notice of trial yet instead of go to trial  he withdraw his record so that this recognizance be clear and indisputable  become forfeit and be agree by Mr stow of counsel for the bail to be so but  after this the prosecutor hide move for cost against the defendant lion for  not go on to trial after he have give notice that he will do so which cost  have be actual tax and then regular and duly demand of lion and upon  nonpayment of they by he the prosecutor have obtain and execute a attachment  against he and he be now in custody upon this attachment for his contempt in  not pay they but with regard to the merit of the prosecution the defendant  have give notice a No reason be give for this and it be contrary to burr and  burr and former case for the court to suppose the first rate good therefore  only the latter part of the order ought to have be quash as appear from vin  vide ante p burrow er p of trial in the follow term and go to trial accord to  such notice and be acquit Mr stow on behalf of the ball insist that the  prosecutor can have but one satisfaction for these cost though he may have  either require they of the bail or take the principal in execution but have  make his election to proceed against the person of the principal and get his  booty in execution he be not afterward still at liberty to proceed against the  bail who remain no long liable after such election make by the prosecutor to  proceed against the person of the principal notwithstanding the recognizance  be as he confess it be actual forfeit Mr Clayton very strong urge that as the  recognizance be acknowledge to be actual forfeit the bail ought not in point  of law or reason to be discharge from burrow it till these cost which be sole  owe to their principal own wilful default shall be pay to the prosecutor the  court as then advice be incline to think that the prosecutor have make his  election to proceed against the person of the principal and have take his body  in execution can not after that take further remedy against the bail however  they give Mr Clayton a day or two to look into it adjourn Mr Clayton now again  insist that the recognizance ought not to be discharge till the prosecutor be  pay the cost which he incur by the defendant not proceed to trial accord to  his notice and he urge in particular that by the statute of W m c if the  defendant prosecute the writ of certiorari be convict of the offence for which  he be indict the court shall give reasonable cost to the prosecutor e which  cost shall be tax accord to the course of the court and the prosecutor for the  recovery of such cost shall within ten day after demand make of the defendant  and refusal of payment on oath have a attachment grant against the defendant  by the say court for such his contempt and the say recognizance shall not be  discharge till the cost so tax shall be pay therefore this recognizance ought  not he say to be discharge and these cost shall be pay Mr stow for the bail  allege that this Act of parliament make I to prevent delay of proceed at the  quarter session of the peace relate only to quartersession not to indictment  for perjury find at hicks hall which be before the justice as justice of oyer  and terminer beside this clause now insist upon by Mr Clayton begin thus if  the defendant prosecute such writ of certiorari be convict of the offence for  which he be indict then the say court of king bench shall give reasonable cost  to the prosecutor if he be the party injure or a justice c or other civil  officer burrow prosecute as a officer whereas this defendant be not convict  but on the contrary be acquit moreover the cost at present in question be not  cost within the Act of parliament even if the defendant have be convict these  be cost for not go on to trial and the attachment and execution be all  exclusive of this Act of parliament and not within the term or meaning of the  recognizance but the court hold that as the recognizance be actual forfeit and  the prosecutor have have cost tax to he for the defendant ne greeting to go on  to trial and as he have receive no satisfaction for these cost for the man  body be in custody be no real satisfaction to he for the cost there be no  reason for their discharge the recognizance for there be no pretence for  person to apply for a favour without first do justice b wherefore per cur the  rule to show cause why the recognizance shall not be discharge be itself  discharge and so it be determine in Sidney case king v Sidney p g b r isc Str  determine on another point b queen for it do not appear that the prosecutor  have give rule without which the recognizance be not forfeit salk pl hawk p c  chap see burrow er p