The sheriff

diately after they are executed, and the sheriff may then be
ruled to return them; therefore the effect of the bail bond is,
that if special bail be not put in, the plaintiff may proceed
either against the sheriff or on the bond, for the condition of
the bond is to put in special bail, consequently a surrender of
the principal within eight days will not discharge the bond;
for there would be great inconvenience if the sheriff might be
called upon to return the writ, and that the defendant might
at the same time discharge the bail bond by a render, and
put a stop to proceedings either against the sheriff or the
baila. Where a bail bond has been taken and special bail has
not been put in within eight days, the plaintiff may declare de
bene esse, and if he neglect to do so, he is not entitled to
have the bail bond stand as a security b. The bail bond is
discharged by the defendant's giving a cognovit for the pay-
ment of the debt and costs without the knowledge of the bail".
But where a cognovit was taken with the consent of the bail,
and the debt is not paid pursuant to the undertaking, it was
held that the plaintiff should give the bail notice that the cog-
novit is unsatisfied before he could commence proceedings
against him d
After the bond is forfeited, giving time to
the principal will not discharge the baile.

3.-Assignment of a bail bond and proceedings thereupon.] must assign At common law a bail bond was not assignable so as to give

the bail

bond if the the plaintiff a right to sue upon it in his own name, but the plaintiff requires it. 4 & 5 Anne, c. 16. s. 20. enacted," 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, or other officer, at the request and costs

of the plaintiff in such action or suit, or his lawful attorney, shall 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, 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." a

The provisions of this statute do not apply to proceedings in a court of equity; therefore a bail bond given by a party attached for contempt in not putting in an answer in Chancery is not assignable. The creditor's remedy is by action in the name of the sheriff. The assignment of the bond may be made by the sheriff himself, or by the under-sheriff in the name of the sheriff. It seems that the seal of office will be sufficient to give validity to the assignment, whoever may have signed it; it is therefore no objection that it was signed by one of the under-sheriff's clerks 4. The assignment must be executed in the presence of two disinterested witnesses; but it is not necessary that they should both subscribe their names in the presence of the officer assigning. The plaintiff in the action must not be one of the witnesses.

An action on the bail bond by the assignee must be brought in the court in which the original suit was commenced, even though it be an inferior court s. But if the sheriff himself puts

Liability of the bail.

the bond in suit, the action may be brought in any court 3. By
Reg. Gen. H. T. 2 W. IV. r. 30, proceedings on the bail bond
may be stayed on payment of costs in one action, unless
sufficient reason be shewn for proceeding in more. But
where several actions are brought on the same bail bond, it is
too late, after verdict, to move to stay proceedings on payment
of the costs of one action only . When the sheriff is ruled to
bring in the body, proceedings cannot be taken on the bail
bond until that rule has expired.
A declaration de bene esse,

in the original action, is not a waiver of a previously com-
menced suit on the bail bond d.

The bail are liable to the plaintiff for the whole debt (without regard to the sum sworn to) and costs to the full extent of the penalty in the bonde. Prima facie, the bail to the sheriff are liable to the charges of putting in bail above; if they apply to an attorney to put in bail above, they are liable for their expenses, but not for the subsequent expenses of the suit. It seems that where the bail are let in upon terms, to try the cause of the principal, the money levied to abide the event, and the bail bond to stand as a security, the bail are not liable beyond the penalty on the bond, although the debt and costs exceed the same after the trial, and the plaintiff's debt would have been fully covered by the security, when the bail were first let in to try upon terms 6.

Burr. 1923. 2 Saund. 61. Ches-
terton v. Middlehurst, 1 Burr. 642.
Per Taunton, J., in Meller r.
Palefreyman, 4 B. & Ad. 149.
Even before the new rules the
defendant could not object, under
non est factum, that the action was
brought in a wrong court. Wright
v. Walmsley, 2 Campb. 396.

Reg. Gen. H. T. 2 W. IV. reg.
28. Before this rule it was held by
the Court of King's Bench in Do-
natty v. Barclay, 8 T. R. 152, that
an action even by the sheriff or his
officer must be brought in the court
where the original suit was com-
menced; but it was held otherwise

SECTION XIII.

THE DECLARATION.

THE name of the person against whom the writ is stated to have been issued, should be stated accurately in the declaration. Where the declaration in reciting the writ stated that the sheriff, to whom it was directed, was commanded to take "the said defendant, T. A. to answer the plaintiffs in a plea of trespass, and also to a bill of the plaintiffs against the said defendants;" held, on special demurrer, that it was ill, in not clearly showing against whom the writ was issued, or who was the defendant in the plaintiffs' suit on the writ". Where the declaration stated that the writ was against the said W. Cocken by the name of W. Cocker, after verdict judgment was arrested, on the ground that such a misnomer on the writ made the arrest illegal and the bail bond void, there not being an averment that the defendant was known as well by one name as the other. But a declaration stating the writ in its very terms, and then averring that the now defendant was and is known as well by the one name as the other, would be good d.

It is not, however, necessary that the declaration should aver that the writ on which the defendant was arrested was issued on an affidavit of debt, and indorsed with the sum sworn to, for the court will presume that all the proceedings antecedent to the bail bond were regular e.

Before the uniformity of process act, (2 W. IV. c. 39,) it was considered sufficient to declare on the bond according to its legal effect, without setting forth the words of the con

No advantage can be taken at the trial of a misnomer of the plaintiff, though there be a person of the name erroneously used; it is a question of fact who is the real plaintiff. Moody v. Aslatt, 1 C. M. & R. 771. 1 Gale, 47.

Id. 2 Ch. Pl. 292.

e Sharpe v. Abbey, 5 Bing. 193. Dorrington v. Bucknell, 11 Moore, 445. Wilcoxon v. Nitingale, 4 Bing. 501. 2 M. & P. 312.

ditiona; but now the condition should be set forth verbatim b. The writ in the original action, the court out of which it issued, and the condition, should be set out accurately. Where the condition set out on the record was, to answer the plaintiff in a plea of trespass, and also to a plea of the plaintiff to be exhibited against the defendant for 60l. upon promises, it was held to be a fatal variance ". So where the writ set out was "to appear before his majesty's justices of the bench at Westminster," and the condition was to appear before the King at Westminster, it was held a fatal variance, for there were different courts d. But where the declaration stated the arrest to be by virtue of a capias sued out of the court of our lord the king, before Sir W. D. B. and others, then his majesty's justices of the bench at Westminster, and averred the condition of the bond to be, that if the principal should appear according to the exigency of the said writ, in the said court, &c., the bond was void, and the breach was the non-appearance according to the exigency of the said writ. On the production of the bond, the condition was for the appearance of the principal "before our sovereign lord the king at Westminster, on, &c.," to answer the plaintiff in a plea of trespass, and also to answer him according to the custom of the king's court of Common Bench, it was held no variance ®.

It may be alleged that the sheriff assigned the bond to the plaintiff according to the statute, without adding that the assignment was made under the hand and seal of the sherifff; and though the statute requires the indorsement to be made in the presence of two witnesses 8, it is not necessary to set forth the names of the witnesses in the declaration h. If, however, it appear on the face of the declaration that the assignment was