be exhibited against him in any other action; for, being in custody of the marshal of the supreme court, he shall answer to all matters there; so that this bond is also a security for his appearance in the action of trespass, which is in the plaintiff's own right, and may be insisted on as well as the bill in debt, ergo, the action well brought in the debet and detinet. This action is in loco of the sheriff. If the sheriff does not comply with the injunctions of the statute, and, without the plaintiff's consent, takes a security of a different kind than that described therein; the courts will not afford him any relief, nor interpose in his favour, for the purpose of enforcing such security, on the ground of his having been guilty of a breach of his duty.

Hence where a sheriff's officer took an undertaking from the defendant's attorney, instead of a bail-bond, for the appearance of the defendant, and bail above was not duly put in, and an action for an escape was brought against the sheriff, the court would not relieve him, by permitting him to put in and justify bail afterwards; although he offered to pay the costs of the action brought against him. So where the defendant's attorney gave the sheriff's officer an undertaking that he would give the sheriff a bail-bond in due time, which he afterwards neglected to do, and the plaintiff recovered against the sheriff for the escape; the court refused to proceed summarily against the attorney, to make him pay the debt and costs, for his breach of faith, on the ground that the undertaking was illegal (41). The statute 23 H. 6. c. 10. is a general lawd, of which the king's courts will take cognizance, although it is not pleaded (42).

b Fuller v. Prest, 7 T. R. 109.

c Sedgworth v. Spicer, 4 East, 568.

d Samuel v. Evans, 2 T. R. 569.

(41) It is to be observed, that the provisions of this statute are confined to securities given to the sheriff or other officer. Hence bonds given to the plaintiff are not within the statute *; and consequently may be taken in a different form than that prescribed by the statute t. So, also, undertakings given by the defendant or his attorney, to the plaintiff or his attorney, for the appearance of the defendant, are valid, and may be enforced by attachment.

(42) This statute was formerly considered as a private law. But in Samuel v. Evans, which finally decided that it was a public law, it was observed, that whatever might have been the law before the statute of Queen Ann, the case of Saxby v. Kirkus‡ had removed all * Raven v. Stockdale, Gouldsb. 66. agreed in Leech v. Davys, Aleyn, 58. + Hall v. Carter, 2 Mod. 304. per Buller, J. Rogers v. Reeves, 1 T. R. 422. t Bull. N. P. 224.

As to the manner of pleading, so as to take advantage of this statute, it will be proper to remark, that the special matter, which brings the case within the statute, must appear by some means or other upon the record: if it be shewn on the declaration, it need not be pleadede. So if it appear on craving oyer of the bond, the defendant may demur without shewing the special matter. In short it is sufficient if it appears on any part of the record.

If the defendant does not appear at the return of the process, according to the condition of the bail-bond, that is, if he does not put in and perfect bail above in due time, the bail-bond is forfeited, and the plaintiff may take an assignment of it. This course is usually pursued, if the bail below are sufficient. Before the statute for the amendment of the law 4 and 5 Ann. c. 16. the sheriff was not compellable to assign the bail-bond, though if he had not assigned it, the court would have amereed him. Another mischief at common law was, that after an assignment of the bail-bond, the action thereupon must have been brought in the name of the sheriff, who might have released the obligor, and thereby driven the plaintiff into a court of equity. To remedy these inconveniences, it was enacted, by stat. 4 and 5 Ann. c. 16. s. 20. " that if any person shall be arrested by any writ, bill, or process, issuing out of any of the king's courts of record at Westminster, at the suit of any common person, and the sheriff, or other officer, takes bail from such person, the sheriff (43), or other officer, at the request and costs of the

e Id. g Harrison v. Davies, 5 Burr. 2683. f Per Buller, J. in Samuel v. Evans, 2 h Shipley v. Craister, 2 Ventr. 13i. T. R. 575.

doubt for the court there said, though the 23 H. 6. c. 10. were a private law, yet the statute 4 and 5 Ann. having enabled the sheriff to assign such bond, the court must take notice of the law that enables him to take such bond. See Benson v. Welby, 2 Saund. 155. a. n. (4).

(43) In the case of Kitson v. Fagg, 1 Str. 60. (for the argument in this case, see 10 Mod. 288.) the question being, whether a bailbond was well assigned by an under-sheriff's elerk? Parker, C. J. said, that he had the advice of all his brethren; and they were of opinion, that an under-sheriff might assign a bail-bond in the name of the high-sheriff, it having been the constant practice ever since the stat. 4 and 5 Ann., but that if the assignment was neither by the sheriff, nor his under-sheriff, as in this case, it would not be good. In debt on a bail-bond, defendant pleaded that there was not any

plaintiff in such action or suit, or his lawful attorney, shall (44) assign to the plaintiff in such action the bail-bond, or other security taken from such bail, by indorsing the same, and attesting it under his hand and seal, in the presence of two or more credible witnesses, (45) which may be done without any stamp, provided the assignment so indorsed be duly stamped before any action brought thereupon: and if the bail-bond or assignment, or other security taken for bail, be forfeited, the plaintiff in such action, after such assignment made, may bring an action thereupon, in his own name; and the court, where the action is brought, may, by rule of the same court, give such relief to the plaintiff and defendant in the original action, and to the bail, as is agreeable to justice, and such rule shall have the effect of a defeasance to the bail-bond." By s. 24. it is provided, "that this act shall extend to all courts of record within this kingdom." But it does not apply to proceedings in equity. Formerly, although by this statute the court where the action was brought, on the bail-bond, was expressly authorised to exercise an equitable jurisdiction, yet, upon the supposition that every other court, except that where the original action was brought, was incompetent to exercise that jurisdiction, it was holden, that an action on the bail-bond, whether brought by the assignee or the officer', must be brought in that court, where the original action was commenced; advantage, however, could not be taken of the

i Meller v. Palfreyman, 4 B. & Ad. 1 Donatty v. Barclay, 8 T. R. 152. but 146.

k Chesterton v. Middlehurst, 1 Burr. 642. Walton v. Bent, 3 Burr. 1923. Morris v. Rees, 2 Bl. Rep. 838. and 3 Wils. 348.

see Newman v. Fawcitt, 1 H. Bl. 631, C. B. contra, as to sheriff, that he may sue in a different court.

assignment of the bond by sheriff or under-sheriff. It appeared in evidence, that the bond had been assigned to the plaintiff by one of the under-sheriff's clerks. The preceding case of Kitson v. Fagg, was cited as an authority to shew, that this was not a good assignment. But Lord Mansfield, C. J. was clearly of opinion, that the seal to the assignment, being the seal of office, was sufficient to give it validity, whoever had signed it. Harris v. Ashby, London Sittings, M. T. 1756. MSS.

(44) If the sheriff refuses to assign the bail-bond, it seems that an action on the case will lie against him for breach of duty imposed by the statute.

(45) The witnesses must be disinterested persons, and different from either the assignor or assignee. White v. Barruck, 1 M. & W. 424.

action having been brought in a wrong court, upon the plea of non est factum ; but now by R. G. H. T. 2 W. 4. 28. the sheriff himself may sue in any court; but the assignee must still as formerly bring his action in the same court from which the process issued, upon which the bond was taken. Jervis's New Rules, p. 49. n. (c).

The assignment may be stated in the declaration to have been made in a different county from that in which the bailbond was given, and the venue may be laid in the county in which the assignment is stated to have been made, agreeably to the rule, that where matter in one county is dependent on matter in another county, the plaintiff may lay his action in either. Debt upon a bail-bond; and plt. declares that he sued out a writ directed to the sheriff of Surrey ", &c. who took a bail-bond, which he afterwards assigned to the plaintiff at London, where the action was brought. Demurrer, on the ground that the action was founded on the bond entered into by the bail, and that being laid to be done in Surrey, the action should have been there; but judgment for the plaintiff.

It is sufficient for the plaintiff to state in his declaration °, that the sheriff assigned the bond to him according to the form of the statute, without adding, that "the assignment was under the hand and seal of the sheriff;" and the defendant may plead, that he did not assign, &c. according to the form of the statute, and the plaintiff may tender an issue thereon in those words, on which he must prove that the assignment was according to the statute, under the hand and seal of the sheriff. So, though the statute requires the indorsement to be made by the sheriff in the presence of two witnesses, yet it does not require the names of the witnesses to be set forth in the declaration, and, consequently, if they are omitted, the omission will be holden immaterial P. So if it is averred in the declaration, that the sheriff assigned the bail-bond by indorsement upon the said writing obligatory, and attested it under his hand and seal, in the presence of two credible witnesses 9, or if it be averred, that the assignment was made in the presence of two credible witnesses, it is sufficient without aver

ring that the indorsement was attested by two credible witnesses. A profert in curid of the assignment is not necessary; because the assignment is not by deed. The assignment is good, though the sheriff be out of office; the act does not say it shall be done during the shrievalty.

It is not necessary to state in the declaration, that the defendant in the original action was arrested ", nor if stated is it traversable. Neither is it necessary to state, that the debt was sworn to by the plaintiff, nor that the sum sworn to was indorsed on the writ, such omission having been sanctioned by a series of precedents. Bail to the sheriff are liable to the plaintiff's whole debt (without regard to the sum sworn to,) and costs, to the extent of the penalty of the bail-bond2. After a defendant has been discharged out of custody upon the bail-bond being given a, it is neither in the power of the bail to render him, or of the party to surrender himself again into the custody of the sheriff before the return of the writ without the consent of the latter. But the sheriff may, if he pleases, accept the surrender of the party, who is willing to return into his custody, before the return of the writ. And, if the sheriff consents to do so, and by virtue of such surrender has the defendant in his custody at the return of the writ (47), the court will then consider it as if no bail-bond had been given: and consequently, under these circumstances, an action cannot be maintained against the sheriff for not assigning the bail-bond; nor can he be proceeded against for not bringing in the body, although upon being ruled to return the writ, he returned cepi corpus c.

Pleadings. To an action of debt by the assignees of the sheriff upon a bail-bond, non est factum may be pleaded. If issue be joined on non est factum, the only proof required on

s Leafe v. Box, 1 Wils. 121.

t Hays v. Manning, B. R. E. 8 G. 1,
Serjt. Hill's MSS. vol. 29, p. 68.

u Watkins v. Parry, Str. 444.
x Haley v. Fitzgerald, Str. 643.

y Whiskard v. Wilder, 1 Burr. 330. (46).

z Stevenson v. Cameron, 8 T. R. 28.

a Hamilton v. Wilson, 1 East, 383.

b Stamper v. Milbourne, 7 T. R. 122. c Jones v. Lander, 6 T. R. 753.

(46) See the remarks of Sir J. Mansfield on this case in Hill v. Heale, 2 B. and P. N. R. 201.

(47) The party will not be considered as legally in the custody of the sheriff from the mere circumstance of the sheriff's having received notice of the surrender; there must be an assent on the part of the sheriff to the surrender. 1 East's R. 383.