extent bail sworn to) and costs, provided the amount do not ex- To what ceed the penalty of the bond; (m) and they are not to the sheliable beyond the penalty, when let in upon terms riff liable. to try the cause, (the bail bond standing as a security) although the debt and costs exceed the penalty, after trial. (n) (m) 8 T. R. 28. 2 Blac. Rep. 816. 1 Cowp. 71. 76. Man. Ex. Prac. 127. (n) 2 Smith, 354, By what process, court, ac bond must be commenced. CHAPTER V. Action on the Bail bond. WHEN a bail bond has become forfeited, by the omission of the defendant to put in bail above in due time, and in what the sheriff becomes entitled to bring an action of debt tion on bail, thereon; and his assignee has a similar right conferred on him by the assignment. (a) The suit against the bail must, however, be commenced by serviceable process, (b) and in the Court from whence the writ in the original action issued; (c) unless the defendant live out of the jurisdiction of that Court, (d) or there be some other special circumstance to warrant instituting an action elsewhere. And it will make no difference, in this respect, that the original suit was brought in an inferior Court, (e) or that one of the parties to the bail bond is an attorney of some other Court; as by entering into a bail bond he waives his privilege. (ƒ) But the practice of compelling the plaintiff, in an action on a bail bond, to bring such action in the Court where the original suit was instituted, is only applicable to the sheriff's assignee, not to the sheriff himself; (g) except, perhaps, in the case of the original action having been removed from an inferior Court. (h) And the proper course to take when an action is brought in a wrong Court, is either to demur to the declaration on the bail bond, (i) or move the Court to set aside pro If action brought in a wrong Court, how taken advantage of. (a) Ante, 66. (c) 1 Burr. 643. 3 id. 1923. Barnes, 92. 3 Wils. 348. 2 Blac. Rep. 838. S. C. 8 T. R., 152. 8 Price, 174. and see 2 Camp. 396. (d) 1 Burr. 643. (e) 1 Burr. 643. 8 T. R. (f) Barnes, 117. (g) 1 H. Blac. 631. 8 Price, 174. But see 8 T. R. 153. semble aliter. (h) 8 T. R. 152. and see this distinction recognized, in 8 Price 178. by the Lord Chief Baron. (i) 8 Price 174. ceedings thereon; (k) for this irregularity cannot be taken advantage of under the plea of non est factum.(l) not allow Although a bail bond is usually joint and several; Separate yet the Court of King's Bench will not countenance the actions on plaintiff in bringing separate actions thereon, (m) unless bail bond under peculiar circumstances, as where a suit has been ed. instituted against one party only, and that one becomes unable to pay. (n) or where one of the parties cannot be served with process. (o) Hence, when the assignee. of a bail bond did bring several actions without suggesting any sufficient reason for so doing, the Court of King's Bench stayed the proceedings in all the actions against the bail, upon payment of the costs of one, under the construction of 4 and 5 Ann. c. 16. s. 20. Abbott, C. J. dissentiente. (p) But in the Common Pleas from a previous case it appears, that bail must pay the costs of all actions commenced against them, as well as the debt, before proceedings can be stayed. (q) With respect to the time when the bail bond may be put in suit, it will be sufficient to refer to the time when an assignment may be taken. (r) For points relative to the declaration on a bail bond, and pleadings thereto, (See 2 Chitty on Pleading. Index, "Bail Bonds.") (k) 1 H. Blac. 631. and see 2 Camp. 395. per Lord Ellenborough. (1) 2 Camp. 395, 6. (m) 2 B. and Ald. 598. 1 Chit. Rep. 337. S. C. Abbott, C. J. dissentiente. (n) 2 B. and Ald. 600. per Abbott, C. J. (0) 2 B. and Ald. 604. per (p) 2 B. and Ald. 598. 1 (r) Ante 67, 8, 9. At what time bail bond may be put in suit. Pleadings in action on bail bond. E How proceedings set aside. CHAPTER VI. Of Setting Aside, or Staying Proceedings. HAVING seen the practice of the Courts with reference to proceedings on the bail bond, the transition from thence to the consideration of the circumstances under which, and the means by which, those proceedings may be set aside or stayed, is obvious. If there be any irregularity either in the proceedings in the original action, or in those on the bail bond, the proceedings on that instrument will generally be set aside; or if the proceedings be regular, will be stayed on terms (a) upon application to the Court by motion in term time, or in vacation to a judge, on payment of costs by the plaintiff; (b) and no affidavits of merits is requisite in order to set aside proceedings, as the rule of M. 59 Geo. 3. K. B. (c) only applies to staying proceedings regularly commenced; neither is it necessary, when the proceedings on the bail bond are irregular, to put in and perfect bail in the original action, previously to applying to the Court to set them aside.(d) A notice of motion should however, be served on the plaintiff's attorney, (e) and an affidavit of the service together with a copy of the notice of motion be pro. duced in Court; (ƒ) an affidavit should also be made specifying the irregularity complained of, which, if it be in any of the proceedings in the original cause, ought to be entitled therein, as well as the rule or summons: (g) But when the irregularity is in the action Post, 80. (b) 1 Sel. Prac. 187, 8. (g) Webb v. Mitchell, M. 48 Geo. 3. Kettle v. Woodfield, T. 40 Geo. 3. K. B. cited Tidd. 305. 8th ed. 3 B. and Pul. 118. 1 Bing. 142. C. P. But see 2 Chit. Rep. 109. against the bail on the bail bond, the affidavits, &c. should be entitled in the latter action. (h) ings must be made. With reference to the time when an objection may Within what time be made on the ground of irregularity, it is a rule not to allow it after the party complaining of the irregula- to set aside application rity has taken a subsequent step in the cause; (i) or proceedeven before any step has been taken, if the application to set aside proceedings be not made within a reasonable time, (j) as the irregularity is considered to be thereby tacitly waived. But an omission to apply at the proper time will not waive a complete defect. (k)· And in the Common Pleas, from a late case, it appears to be sufficient for a party who would set aside proceedings for irregularity, to apply immediately after the irregular party has taken the first further step: if, however, he let him take a second further step, he waives the irregularity. (1) In the Exchequer, motions to set aside proceedings for irregularity must be made in the term in which the irregularity is committed. (m) The irregularity or defects of most frequent occur- In what rence, and which afford grounds for setting aside proceedings and cancelling the bail bond, arise chiefly set aside. with reference to, The affidavit to hold to bail, The writ, The arrest, The bail bond, and proceedings incident thereto, The exception to bail. In this order therefore we shall consider them. Having shewn in a foregoing chapter (n) the cases in which an affidavit is necessary, and also the form thereof, it is sufficient merely to state, that if there be (h) Ante, 74. note (g) (i) 5 T. R. 254. 7T.R. 375. 8 id. 77. 1 East, 77, 81, 330. 2 Smith, 391. K.B. 1 H. Blac. 251. 1 B. and Pul. 250. 1 Taunt. 58, 59. 2 Taunt. 244. 4 id. 545. 6 id. 5. 1 Marsh. 403. S. C. But see 6 Taunt. 190. 1 Moore, 300. per Gibbs, C. J. C. P. () 8 T. R. 77. Pearson v. Hodgson, M. 55 Geo. 3. K. B. case proceedings For irregularity in affidavit to hold to bail. |