matter of defence; (') and it will not in any case interfere, unless it clearly appears that the application is made on behalf of the sureties, and not of the principal. (2) Proceedings will be stayed on the application of the sureties, upon payment of the amount of the rent, if it is less than the value of the goods and the costs secured by the bond; if the amount of the rent exceeds the value of the goods, then on payment of the value of the goods with the costs, and in both cases on payment also of the costs of the application.(3) And proceedings will be stayed on payment of the penalty and costs, though the plaintiff's costs on the replevin suit exceed the penalty.(*) If more than one action be brought on the bond, without sufficient reason, proceedings will be stayed on payment of the costs of one only.(5)

(d) Judgment.]-The plaintiff, in an action on the bond, is entitled to recover the amount of the rent in arrear, or, if the value of the goods distrained be less, the value of such goods, and the costs of the action of replevin, to the extent at least of the penalty of the bond.(*)

(e) Action on bond given in county court.]-It would appear that this bond will become forfeited in the same way, and that the action upon it is subject to the same rules, as with respect to the bond given to the sheriff. (')

V. LIABILITY OF SHERIFF.

The sheriff is not bound to warrant the sufficiency of the pledges in a replevin bond.(*) If they are apparently sufficient, it is enough; but if he or the replevin clerk redeliver the goods to the owner without any sureties or pledges, or if without proper inquiry he accept of persons who are insufficient, (9) or who are not amenable by reason

(1) Anon. 5 Taunt. 776.

(2) Warton v. Blacknell, 12 M. & W. 558. (3) Miers v. Lockwood, 9 Dowl. 975.

Branscombe v. Scarbrough, 6 Q. B. 13.

($) Bartlett v. Bartlett, 4 M. & G. 769.

() Gingell v. Turnbull, 3 B. N. C. 881;

Ward v. Healey,

1 Y. & J. 285; Branscombe v. Scarborough, 6 Q. B. 13.

See Turncliffe v. Wilmot, 2 C. & K. 626.

(Hindle v. Blades, 5 Taunt. 224.

(9) Jefferson v. Bastard, 4 A. & E. 823.

of infancy, &c.,(1) he is liable to an action at the suit of the party distraining, (2) in which the plaintiff will recover all he would have been entitled to recover against the sureties. (3) The costs of a fruitless action against the sureties may also be recovered as damages, () provided notice of bringing it was previously given to the sheriff. (3)

(1) Plumer v. Briscoe, 11 Q. B. 46.

(2) Richards v. Acton, 2 W. & Bl. 1220.

(3) Edmonds v. Challis, 7 C. B. 413; Paul v. Goodluck, 2 Bing. N. C. 220.

(*) Plumer v. Briscoe, 11 Q. B. 46.

(5) Baker v. Garratt, 3 Bing. 56.

CHAPTER XXXIII.

ACTIONS ON BILLS OF EXCHANGE.

A SUMMARY mode of obtaining judgment is now competent in actions on bills of exchange. The 18 & 19 Vict. c. 67, s. 1, reciting that bonâ fide holders of dishonoured bills of exchange and promissory notes are often unjustly delayed and put to unnecessary expense in recovering the amount thereof, by reason of frivolous or fictitious defences to actions thereon, and it is expedient that greater facilities than now exist should be given for the recovery of money due on such bills and notes, enacts that "from and after the 24th of October, 1855, all actions upon bills of exchange or promissory notes, commenced within six months after the same shall have become due and payable, may be by writ of summons in the special form contained in schedule A. to this act annexed, and indorsed as therein mentioned; and it shall be lawful for the plaintiff, on filing an affidavit of personal service of such writ within the jurisdiction of the court, or an order for leave to proceed as provided by the Common Law Procedure Act, 1852, s. 17,(1) and a copy of the writ of summons and the indorsements thereon, in case the defendant shall not have obtained leave to appear and have appeared to such writ according to the exigency thereof, at once to sign final judgment in the form contained in schedule B. to this act annexed (on which judgment no proceeding in error shall lie), for any sum not exceeding the sum indorsed on the writ, together with interest at the rate specified (if any), to the date of the judgment, and a sum for costs, to be fixed by the Masters of the superior

(1) See ante, p. 96.

courts, or any three of them, subject to the approval of the judges thereof, or any eight of them (of whom the Lord Chief Justices and the Lord Chief Baron shall be three), unless the plaintiff claim more than such fixed sum, in which case the costs shall be taxed in the ordinary way, and the plaintiff may, upon such judgment, issue execution forthwith." The holder of a dishonoured bill or note may recover the expenses of noting for non-acceptance or nonpayment, in the same way as he may recover the amount of the bill or note: (s. 6.) These proceedings are competent in the Common Pleas at Lancaster and the Court of Pleas at Durham, or any other court of record in England and Wales, if so directed by an order in council: (ss. 8, 9.) An order in council has since directed the provisions of the act to extend to the county courts and many borough courts: (Gazette, 1 Feb. 1856.)

"The holder of any bill of exchange or promissory note may, if he think fit, issue one writ of summons according to this act against all or any number of the parties to such bill or note, and such writ of summons shall be the commencement of an action or actions against the parties therein named respectively, and all subsequent proceedings against such respective parties shall be in like manner, so far as may be, as if separate writs of summons had been issued:" (s. 6.)

, in the

Form of Writ of Summons. (Schedule A.) VICTORIA, by the grace of God, &c. To C. D., of county of We warn you that unless, within twelve days after the service of this writ on you, inclusive of the day of such service, you obtain leave from one of the judges of the courts at Westminster to appear, and do within that time appear, in our court of in an action at the suit of A. B., the said A. B. may proceed to judgment and execution.

Witness, &c.

Memorandum to be subscribed on the Writ.

N. B. This writ is to be served within six calendar months from the date hereof, or, if renewed from the date of such renewal, including the day of such date and not afterwards.

Indorsement to be made on the Writ before Service thereof.

This writ was issued by E. F., of attorney for the plaintiff, [or this writ was issued in person by A. B., who resides at (mention the city, town or parish, and also the name of the hamlet, street, and number of the house of the plaintiff's residence.)]

£

The plaintiff claims (1) £

principal and interest [or balance of principal and interest], due to him as the payee [or indorsee] of a bill of exchange [or promissory note], of which the following is a copy [here copy bill of exchange or promissory note and all indorsements upon it.] And also shillings for noting (if noting has been paid), and £ for costs (2) and if the amount thereof be paid to the plaintiff or his attorney within four days from the service hereof, further proceedings will be stayed.

NOTICE.

Take notice, that if the defendant do not obtain leave from one of the judges of the courts, within twelve days after having been served with this writ, inclusive of the day of such service, to appear thereto, and do not within such time cause an appearance to be entered for him in the court out of which this writ issues, the plaintiff will be at liberty, at any time after the expiration of such twelve days, to sign final judgment for any sum not exceeding the sum above claimed, and the sum of £ for costs, and issue execution for the same.

Leave to appear may be obtained on an application at the judge's chambers, Serjeant's-inn, London, supported by affidavit, showing that there is a defence to the action on the merits, or that it is reasonable that the defendant should be allowed to appear in the action.

Indorsement to be made on the Writ after Service thereof. This writ was served by X. Y. on L. M. (the defendant) on Monday, the day of

18

X. Y.

Defendant applying to defend or stay proceedings.]—“ A judge of any of the said courts shall, upon application within the period of twelve days from such service, give leave to appear to such writ and to defend the action, on the defendant paying into court the sum indorsed on the writ, or upon affidavits satisfactory to the judge which disclose a legal or equitable defence, or such facts as would make it incumbent on the holder to prove consideration, or such other facts as the judge may deem sufficient to support the

() "No other claim than a claim on a bill of exchange or promissory note is to be included in writs issued under this act:" (Rule M. 1855.)

(2) This part of the form, as to 'costs, was omitted in the act, but was supplied by Rule M. 1855. See Robinson v. Cotterill, 25 L. J.,