sons agree to perform certain work in a limited time, or to pay a stipulated sum weekly, for such time afterwards as it should remain unfinished, and a bond is prepared in the name of both, but is executed by one only, with condition for the due performance of the work, or the payment of the stipulated sum weekly, such weekly payments are in the nature of liquidated damages, and not by way of penalty, and may be set off by the obligee in an action brought against him by the obligor who executed. 2ndly, A debt barred by the statute of limitations cannot be set off a; for the remedy, by way of set-off, was intended to supersede the necessity of a cross action; and a debt barred by the statute of limitations cannot be recovered by action. If such debt be pleaded, the plaintiff ought to reply the statute b. 3dly, The debts sued for, and intended to be set off, must be mutual, and due in the same right (35). A debt due to a person in right of his wife, cannot be set off in an action against him on his own bond. Under the statutes of set-off, the court can only take notice of an interest at law d. As to particulars of set-off, see ante, p. 151. IV. Debt on Bail-bond-Stat. 23 H. 6. c. 10.-Assignment of Bail-bond under Stat. 4 Ann. c. 16.—Declaration by Assignee Of the Pleadings; Comperuit ad Diem Nul tiel Record. Ar common law, the sheriff was not obliged to take bail from a defendant arrested upon mesne process, unless he sued out a writ of mainprize; but, by stat. 23 H. 6. c. 10. it was enacted, "that sheriffs, under-sheriffs, bailiffs of franchises, and other bailiffs (36), should let out of prison all persons by z Fletcher v. Dyche, 2 T. R. 32. a Per Willes, C. J. in Hutchinson v. Sturges, Willes, 262. b Remington v. Stevens, Str. 1271. c Bull. N. P. 179. cites Paynter v. Walker, C. B. E. 4 Geo. 3. d Per Littledale, J. Tucker v. Tucker, 4 B. & Ad. 751. (35) See cases affording an illustration of this rule, under plea of set-off, tit. Assumpsit, ante, p. 150. (36) "This statute does not authorize sheriffs' bailiffs to take obligations for the appearance of persons arrested: from the express mention of bailiffs of franchises, it appears that those officers them arrested or being in their custody, by force of any writ, bill, or warrant, in any action personal (37), or by cause of indictment of trespass (38), upon reasonable surety (39) of only are meant, who have the return of process. When, therefore, the process is directed to the sheriff, the indemnity must be to him." Per Buller, J. in Rogers v. Reeves, 1 T. R. 422. The marshal of the King's Bench is an officer within this statute, Bracebridge v. Vaughan, Cro. Eliz. 66.; but the Serjeant at Arms of the House of Commons is not. Norfolk v. Elliot, 1 Lev. 209. (37) Upon an attachment of privilege, attachment upon a prohibition, attachment in process upon a penal statute, the sheriff may be compelled to take bail by force of this statute; but not upon an attachment for a contempt, issuing out of B. R.* or C. B.† or the Court of Chancery, for disobeying a subpoena‡. But although the sheriff is not compellable to take bail upon an attachment out of Chancery, yet he is not prohibited by stat. 23 H. 6. from doing so; and a bail-bond so taken is good at common law, and may be enforced by the sheriff. Morris v. Hayward, 6 Taunt. 569. But assignee thereof cannot maintain action, it not being within stat. of 4 & 5 Ann. c. 16. Meller v. Palfreyman, 4 B. & Ad. 146. In Studd v. Acton, it was holden that the words " by force of any writ, bill, or warrant, in any action personal," were confined to actions at law. appear (38) The sheriff is not authorized§ to take a bond for the ance of persons arrested by him, under process issuing upon an indictment at the quarter sessions, for a trespass and assault; because at common law the sheriff could not bail any persons indicted before justices of the peace, and this stat. of 23 H. 6. was not passed to enable the sheriff to take bail in cases where he could not bail before; but, in order to compel him to take bail in those cases, where he might have taken bail, and neglected so to do. At common law, the sheriff might have bailed persons indicted before him at his torn, and, consequently, by this statute he was compellable to bail such persons; but the stat. 1 Edw. 4. c. 2. having taken away the sheriff's power of bailing in such cases ¶, the stat. 23 H. 6. is in this respect rendered of none effect. (39) According to the opinion of Ashhurst, J. in Rogers v. Reeves, 1 T. R. 421. a security of a lower nature than a security by bond, as a simple contract undertaking, is insufficient. If the sheriff refuses to take bail, sufficient sureties being tendered, medy against him is an action of trespass on the case. 2 Mod. 32. VOL. I. the proper reSmith v. Hall, * Anon. 1 Str. 479. Resolved by all the judges. Studd v. Acton, 1 H. Bl. 468. Bengough v. Rossiter, 4 T. R. 505. 2 Hawk. P. C. c. 15. s. 26. Id. s. 27. 2 P sufficient persons, having sufficient within the counties where such persons are let to bail, to keep their days in such place as the said writs, bills, or warrants, shall require; persons in ward by condemnation, execution, capias utlagatum or excommunicatum, surety of the peace, or by special commandment of any justice excepted. And no sheriff, &c. shall take, or cause to be taken or made, any obligation for any cause aforesaid, or by colour of their office, but only to themselves, of any person, nor by any person, which shall be in their ward by course of law, but upon the name of their office, and upon condition that the prisoners shall appear at the day and place contained in the writ, &c.; and if any sheriffs, &c. take any obligation in other form, by colour of their office, it shall be void. The constant usage since the passing this act has been for sheriffs, and other officers, to take a security by bond. Regularly, this bond ought to be taken with two or more sureties, at the least, the words of the statute being "surety of sufficient persons;" and the sheriff, &c. may insist upon two sureties being given; yet it has been adjudged, that, as the indemnity is for the protection of the sheriff, &c. he may wave the benefit, and take a bond with one surety only. The form of surety prescribed by the statute must be strictly pursued, that is, 1st, The bond must be made to the sheriff or other officer himself. Hence a bond made to the sheriff's bailiff is bad. 2ndly, It must be made to the sheriff or other officer by the name of his office and county. On error in debt on bailbond, it was excepted, that it was not shewn, that the bond was to the sheriff by the name of his office. The court were of opinion that it should so appeark; but they thought that in the present case it did sufficiently appear on the whole declaration, it being laid solvend. eidem vicecomiti et assignatis. 3dly, There must be a condition to the bond; and that condition must be for the appearance of the defendant at the day and place mentioned in the writ, &c.; and for that only. Hence, if there be not any condition1; or what amounts to the same thing, if the condition be impossible, as where the condition is for the appearance of the defendant at a day past when the bond is madem; the bond is void. So if any other condition than that prescribed by the statute is expressed in f See note (39.) g Drury's case, 10 Rep. 100. b. 101. a. recognised in Cotton v. Wale, Cro. Eliz. 862. h1 T. R. 422. i Noel v. Cooper, Palm. 378. k Symes v. Oakes, Str. 893. 1 Graham v. Crawshaw, 3 Lev. 74. m Samuel v. Evans, 2 T. R. 569. the bond: as if it be conditioned "to put in good bail for the defendant at the return of the writ, or to surrender the defendant, or to pay the debt and costs"," it will be bad. But if the bond be made to the sheriff by the name of his office, and the condition expresses the time and place of appearance, a variance in other respects will be immaterial: As in the following cases; where the writ was to answer A. B. in a plea of debt of three hundred and twenty pounds, and the condition of the bond was to appear to answer A. B. in a plea of debt. Where the writ was to answer in a plea of trespass, and the condition was to appear to answer generally, without saying in what action; the court held the bond good: because no other action shall be intended; and the statute only requires the bond to be conditioned for an appearance, and the words "to answer, &c." are surplusager, Where the writ was to appear before our lord the king, at Westminster, and the condition was to appear before his majesty's justices of the bench, at Westminster; it was holden sufficient (40). Where the writ was to answer in a plea of trespass, and also to a bill of 1001. of debt, and the condition was to answer in a plea of trespass of 1007.; the variance was holden to be immaterial". Where the original writ was to answer in a plea of trespass, on the case, on promises; and the condition was to answer in a plea of trespass: the bond was holden to be goods. Where the writ was to answer of a plea of trespass, and also to a bill of the said John; and the condition was to answer of a plea of trespass, and also to a bill, (omitting the words "of the said John,") it was holden an immaterial variancet. Where the process was to appear before the barons; and the condition was to appear in the office of pleas in the Court of Exchequer, at Westminster; it was holden well enough". Where the process was in an action of trover; and the condition was to appear to answer of a plea of trespass on the case on pro n Rogers v. Reeves, 1 T. R. 418. o Villiers v. Hastings, Cro. Jac. 286. r Cudwell v. Dunkin, T. Jones, 137. 2 Show. 51. S. C. s Owen v. Nail, 6 T. R. 702. T. t Rench v. Bretton, 10 Mod. 327. (40) It appears from Levinz's report of this case, that the defendant brought a writ of error in the Exchequer Chamber, and that it was argued again, and the majority of the judges were for affirming the judgment. But North, C. J. being strongly against it, it was adjourned. mises; the bond was adjudged sufficient, on the ground that the words, "to answer, &c." were only surplusage, and might be rejected. Where the original was returnable before our lord the king, wheresoever, &c.; and the words, "wheresoever, &c." were omitted in the bail-bond; and it was objected, that by the statute, the sheriff could not take any bond but such as corresponded with the writ, whereas this might be to compel an appearance out of England, if the king should happen to be so: but the court said, that it was sufficient in these bonds to state in substance the design of the writ; and they would understand, that by appearing before the king, was meant before the king in his court, and not before the king in person. So where the writ was to appear, on a general return day, before the king wheresoever he should then be in England, and the bond was conditioned for the appearance of the party before the king, at Westminster, at the day named in the writ; the variance was holden to be immaterial; Lord Ellenborough, C. J. observing, that Westminster, according to the common understanding of every body at this day, (considering that the Court of King's Bench had been invariably held there for many centuries, except only when it was removed for a short period to Oxford, in 1665,) was the place meant by the more general description in the writ; and that the variance in this case was certainly not greater than that in the preceding case of Shuttleworth v. Pilkington. An executor brought debt in the debet and detineta upon an assignment of a bail-bond, for appearance to a bill of Middlesex, and to answer the plaintiff of a plea of trespass, ac etiam billæ querentis ut executoris I. S. pro. 1500l. de debito secundum consuetudinem curiæ nostræ coram nobis exhibend. On demurrer, it was contended, that this action ought to have pursued the original action, and to have been brought in the detinet only. But the court gave judgment for the plaintiff, Parker, C. J. observing, "The condition of the bond is to appear, in the first place, to answer the plaintiff in an action of trespass in his own right, and then secundum consuetud. cur. to answer the bill in debt as executor, for this court has not jurisdiction in debt originally; but in whatever county the court is sitting you may have a bill in trespass; and, when the party is brought in, a bill may x Davenport v. Parker, Fort. 368. by Buller, J. in King v. Pippett, 1 z Jones v. Stordy, 9 East, 55. a Brumfield v. Lander, B. R. H. 12 Ann. MS. |