defendant, it would probably be cured by the verdict ". Where a bond is conditioned for payment of money on or before a certain day, the defendant may plead payment before the day if the fact be so; and the plaintiff may reply that it was not paid at the particular day mentioned in the plea, nor at at any time before or after that day.

after the

day.

The bond being forfeited by the non-payment of the money Payment on the day mentioned in the condition, a payment after the day could not be pleaded at the common law; but now, by stat. 4 Ann, c. 16. s. 12, "where debt is brought upon any bond, with a condition or defeasance to make void the same upon payment of a lesser sum at a day or place certain, if the obligor, his heirs, executors, or administrators have, before the action brought, paid to the obligee, his executors, or administrators, the principal and interest due by the condition or defeasance of such bond, though such payment was not made strictly according to the condition or defeasance, yet it may be pleaded in bar of such action, and shall be as effectual a bar thereof as if the money had been paid at the day and place according to the condition and defeasance, and had been so pleaded.”

ance.

This enactment is, however, confined to an actual payment; therefore a tender and refusal of principal and interest after the day cannot be pleaded. A plea of payment of part of the sum mentioned in the condition, after the day, is bad on demurrerd. If the act to be done by the obligor is in its nature transitory, Performand no time is limited for that purpose, it ought to be performed in a convenient time, and a request is unnecessary. But if the condition be for the performance of an act that is local, and to which both the concurrence of the obligor and obligee is necessary, and no time is mentioned for that purpose, the obligor hath during his life to perform it, unless hastened.

by request a If the bond is conditioned for the payment of money or for the performance of a collateral act on demand, a demand is necessary before the obligee can put the bond in suit; but if there be a duty to pay the money or perform the act, bringing the action will be a sufficient demand ".

Performance must be according to the terms of the condition; as where the obligor was bound to leave his children 2007. jointly, and he gave his eldest son an estate in land worth more than 50%., and his other three children 50l. a piece, it was held not to be a performance of the condition, though the parties interested had derived more benefit therefrom than they should from a strict performance . Payment by a collector of taxes of money received by him to the account of a different year from that for the service of which they were collected, is a performance of the condition of the bond for due payment d

A literal compliance with the terms of the condition is not sufficient, unless the performance be in accordance with the intent of the parties e.

1.-The nature and requisites of a bail bond.] AT 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 the 23 Hen. VI. c. 9. it is enacted, "that

a Co. Lit. 208. b.

b See Gibbs v. Southan, 5 B. & Ad. 911, ante, 742. Carter v. Ring, 3 Camp. 450, ante, 742. 1 Saund. 33. a.

Taylor v. Bird, 1 Wils. 280. And see Irish Society r. Needham,

1 T. R. 482. Haydon v. Wilshore, 3 T. R. 372.

d Collins v. Gwyne, 9 Bing. 544.

e

Sherman . Tylly, Cro. Car. 597. Bache v. Proctor, Doug. 382. Edwards v. Brown, 1 C. & J. 307.

sheriffs, under-sheriffs, bailiffs of franchises, and other bailiffs, shall let out of prison all manner of persons by them arrested, or being in their custody by force of any writ, bill, or warrant, in any action personal, or by cause of indictment of trespass, upon reasonable sureties of 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." a

The sheriff has no authority under the above statute to take a bond for the appearance of persons arrested by him, under process issuing upon an indictment at the quarter sessions for a misdemeanour; he can only take a recognizance for their appearance. But though it was formerly considered that the statute did not authorize a sheriff to take a bail bond from a defendant who is in custody under an attachment for nonpayment of costs, because such a process was in the nature of an execution, it has been determined by later authority, that a sheriff may take a bond in such cases; for as the non-payment of money creates a civil right, an attachment issued to enforce that right must be considered in the nature of a mesne process d. It was also formerly considered that a sheriff could not take bail, on an attachment out of Chancery; but in a modern case

If the defendant tender a bail with sufficient sureties within the bailiwick, and the sheriff refuse to accept it, he will be liable to an action on the case. 1 Saund. 61. b. See Lovell v. Plomer, 15 East, 320.

b Bengough v. Rossiter, 4 T. R. 505. 2 H. Black. 418. 426. 435.

Phelips v. Barrett, 4 Price, 23. Per Holroyd, J., Lewis v. Morland, 2 B. & A. 65.

e Studd v. Acton, 1 H. Bl. 468.

Requisites of a bail bond.

the court held, that such bonds were neither compellable to be taken, nor prohibited by the statute; but that they were good at common law; and that whether they be taken or not, was in the discretion of the sheriff, as regulated by the practice of the

court a.

The security required by the statute is a bond, therefore an agreement in writing not under seal is void; and the bond must be made to the sheriff himself, as such by his name of office, and not to his bailiffs, for though the statute mentions the bailiff of a franchise, it means those officers who have the return of process; but where it is directed to the sheriff, the bond must be made to him. And the conditions of the bond must be for the appearance of the party at the return of the writ and for no other purpose; so that if there be any other condition expressed in the bond, or the bond be single, or with an impossible condition, or if it be executed before the condition is filled up, it is void. The statute does not require the nature of the action to be inserted in the condition of the bond; if it sets forth the names of the parties and the time and place of appearance substantially, it is sufficient; therefore a mere informality or variance in those particulars will not vitiate the bond c. Where under an original writ in a plea of trespass on the case upon promises, the sheriff took a bail bond conditioned for the defendant's appearance in a plea of trespass, it was held sufficient d. So where the writ was to appear before the king, wheresoever he should then be in England, and the sheriff' took a bail bond for the party's appearance before the king at Westminster on the day named in the writ; held, substantial compliance with the statute, so as assignee of the sheriff to recover on the bond e. bail bond, in reciting the writ of capias, stated that

that it was a to entitle the But where a

a copy

of

the writ was duly delivered to -," omitting the name of the defendant, and likewise omitted his name in the statement of the condition of the bond; it was held to be insufficient, and the court in an action of escape brought against the sheriff, would not supply the deficiency".

Although the statute uses the word "sureties," the bond will not be void if taken with one surety only b. If more than two sureties be tendered and two of them are each worth property to the amount of the penalty in the bond, it is immaterial what property the others have c. Where the writ issued against two defendants, and the sheriff took a bail bond conditioned for the appearance of one only, it was held no ground of demurrer to a declaration on the bond a.

The 12 Geo. I. c. 29. s. 2. directs that the sheriff shall take bail for the sum indorsed upon the writ and no more. In practice however it is taken in double the sum sworn to; and it will be no objection to the bond that it be taken in a greater amount e. But an attorney ought not to prepare a bail bond for a larger sum than is requisite according to the practice of the court f.

2.—When a bail bond may be put in suit.] If the defendant do not put in special bail within eight days after the execution of the writ, inclusive of the day of execution, the bail bond is forfeited, and may be put in suit 8.

Before the uniformity process act, (2 W. IV. c. 39,) a render of the principal might have been made at any time before the return of the writ; and that render would operate to discharge the bail bond; but now writs are returnable imme

A render of the principal will not discharge the bail bond.