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action having been brought in a wrong court, upon the plea of non est factum m; 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 !, or if it be averred, that the assignment was made in the presence of two credible witnesses", it is sufficient without averring that the indorsement was attested by two credible witnesses. A profert in curia 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.
m Wright v. Walmsley, 2 Campb. 396. q Leafe v. Box, 1 Wils. 121. n Gregson v. Heather, Str. 727. and r Rollison v. Taylor, 13 G. 1. proba
Lord Raym. 1445. Norcroft v. Mat- bly the S. C. with Robinson v. Taythews, 13 G. 1. S. P. on the authority lor, Fort. 366. though this point is of Gregson v. Heather.
not mentioned in that report,) cited o Dawson v. Papworth, Willes's Rep. by Wright, J. in Leafe v. Box, I 408.
Wils. 122. p Robinson v. Taylor, Fort. 366.
It is not necessary to state in the declaration, that the defendant in the original action was arrestedų, 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-bond z. After a defendant has been discharged out of custody upon the bail-bond being given, 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 b; nor can he be proceeded against for not bringing in the body, although upon being ruled to return the writ, he returned cepi corpus
Pleading8.-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
& Leafe v. Box, 1 Wils. 121.
Serjt. Hill's MSS. vol. 29, p. 68.
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.
the part of the plaintiff (supposing there is not any other plea,) is proof of the execution of the bail-bond by the defendant d; for the plea of non est factum does not put in issue any other allegation in the declaration; consequently, in such case, it is not necessary to prove the writ, assignment by the sheriff, &c. Debt on a bail-bond given upon an arrest in inferior court e; the defendant pleads, that before the day of appearance mentioned in the condition, he was rendered to the gaoler there, and there continued till a supersedeas came: upon demurrer the plea was holden good.
In an action f by the sheriff on a bail-bond, the bound bailiff who made the caption is a competent witness to prove the execution of the bond, if the defendant, knowing his situation, asked him to become attesting witness.
Comperuit ud Diem.—In debt on bail-bond, the defendant having craved oyer of the condition, may plead (48) an appearance at the day therein mentioned, according to the form and effect of the condition, concluding with "and this he is ready to certify by the record of the appearance;" for the appearance being entered of record is not triable by jury, but by the record 6. This plea is termed a plea of comperuit ad diem. If the appearance is not entered of record, the bond is forfeited h. To the plea of comperuit ad diem the plaintiff may reply nul tiel record, viz. that there is not any such record of the appearance (49). When the record 'is of the same court', this replication ought to conclude with giving a day to the defendant. This constitutes a complete issue of fact; and if in this case the defendant should demur to the replication, the plaintiff need not join in demurrer; but if the record is not produced at the day, the plaintiff may sign
d Hutchinson v. Kearns, C. B. London g Bret v. Sheppard, 1 Leon. 90.
Sittings, Trin. T. 50 G. 3. Sir J. h Corbet v. Cook, Cro. Eliz. (466).
Mansfield, C. J. MS. and new rules. i Cremer v. Wickett, Ld. Raym, 500. e Pawling v. Ludlow, 2 Show, 443. and Carth.517. recognized in Jackson 3 Mod. 87. S. C.
v. Wickes, 7 Taunt. 30. f Honeywood v. Peacock, 3 Campb.
(48) See the form of this plea of an appearance in B. R. Tebbutt, ats. Powle, Lill. Entr. 498, and a similar precedent, p. 114. For the form of plea of an appearance in C. B. see the same book,
(49) For forms of this replication, see Lilly's Entries, p. 114, 480, judgment. When the record is of another court!, the replication ought to conclude with a verification, and a prayer of judgment (50); the defendant thereupon rejoins, “there is such a record;" and the court gives him a day to bring it in. If the record is not brought into court on the day, judgment of failure of record is given (51). To an action of debt on a bail-bond to the plaintiffs m, as sheriff of Middlesex, the defendant pleaded, that the action was brought by the plaintiffs, for the benefit of, and as trustee for, J. S. (the sheriff's officer) by whom the defendant had been arrested, and to whom the defendant, after the return of the writ, but before the sheriff had been ruled to return the same, paid the debt and costs, which J. S. accepted in full satisfaction of the bond; and that if any damage had accrued for default of the defendant's appearance, according to the condition of the bond, it was occasioned by the default of the sheriff's officer not paying over the debt and costs to the plaintiff in the action, which would have been accepted by such plaintiff. On special demurrer, the case of Bottomley v. Brook n was cited in support of the plea, to shew that to debt on bond the defendant might plead, that it was given to the plaintiff in trust for another; so as to let the defendant into a defence which he might have against the cestui que trust. The court, however, were of opinion that the plea was bad; Lord Ellenborough, C. J. observing, that as the officer could not have released the bond, he could not accept any thing in satisfaction of it; and further, that it was not alleged that the bond was originally given to the sheriff in trust for the officer; nor did it appear, how he afterwards came to have any equitable interest in it; consequently this was not brought within the case cited. Lawrence, J. adopting the remark of Buller, J. in Donelly v. Dunn (52) animadverted on the plea, as being an attempt to set up matter as a legal defence, which was nothing more than an equitable practice of the court in exercising a summary jurisdiction over its officers.
k Tipping v. Johnson, 2 B. and P. 303. m Scboley and Domville v. Mearns, I Sandford v. Rogers, 2 Wils. 113. 2 7 East, 148.
T. R. 443. S. C. See new rule, post, n M. 22 G. 3. C. B. cited in Winch v. under Debt on Judgment.
Keeley, I T. R. 621.
(50) See the form, 1 Saund. 92.
(52) 2 B. and P. 47, where it was decided, that bail could not plead the bankruptcy and certificate of their principal in their own discharge.
By R. G. H. T. 2 W. 4. 29. In all cases where the bailbond shall be directed to stand as a security, the plaintiff shall be at liberty to sign judgment upon it. 30. Proceedings may be stayed on payment of costs in one action, unless sufficient reason be shewn for proceeding in more. See Key v. Hill, 2 B. & A. 598. where before the new rule the court did so stay the proceedings, Abbott, C. J. dissentiente.
V. Debt on Bond, with Condition to perform Covenants
Assigning Breaches under stat. 8 89 W. 3. c. 11. s. 8.
At common law, it was usual for the obligee of a bond, with a penalty conditioned for the performance of covenants, to declare on the bond merely; to which the defendant, having craved oyer of the condition and the deed containing the covenants, usually pleaded performance; to this the plaintiff replied a breach of one of the covenants; and upon issue joined, and proof of such breach, the plaintiff was entitled not only to recover the penalty, that being the legal debt, but also to take out execution for the same : although the penalty far exceeded, in amount, the damages which he had sustained by the breach of covenant. Under these circumstances, the defendant could only obtain relief through the interposition of a court of equity, which would direct an issue of quantum damnificatus, and prevent any execution being enforced for more than the damage actually sustained. To prevent plaintiffs, in cases of this kind, from converting that power, which the strictness of the common law gave them, into an engine of oppression, and to avoid the circuitous mode of relief to which defendants were compelled to resort, it was enacted by stat. 8 and 9 W. 3. c. 11. s. 8. “ That in actions upon bond, or any penal sum, for non-performance of any covenants or agreements contained in any indenture, deed, (53) or
(53) This statute is not confined to cases where the bond is conditioned for performance of covenants in some other instrument than the bond ; the condition of the bond is an agreement in writing within this statute. 2 Burr. 826. Neither is this statute confined to cases where there is a penalty to secure the performance of an act, on the non-performance of which the obligee would be entitled to recover uncertain damages : but it extends also to cases where the agreement