payment of what is due, to the extent of the penalty in the bail bond, though less than the plaintiff's demand. R. v. Sheriff of Middlesex.

3 East, 604. 40 In an action on the recognizance, the court will stay the proceedings against both the bail, on payment of the sum sworn to and costs, though less than the damages recovered, or than the sum named in the process. Clarke v. Bradshaw. 1 East, 86. S. P. although it appeared that the defendant, in the original action, was gone abroad. Tranel v. Rivaz. 1 East, 91, n. 41 Where bail is taken under a judge's order (in C. P.) that court, contrary to the practice of K. B. holds each of them liable to double the sum ordered; considering the order as equivalent to the affidavit in other cases. Dahl v. Johnson. 1 Bos. & Pull. 205. 42 If a defendant be holden to bail under a judge's order, a material fact being coucealed from the judge which would probably have induced him to refuse the order; the court will on application discharge the defendant, even though there was a sufficient affidavit of debt, independent of the order. Davis v. Chippendale. 2 Bos. & Pull. 282. 43 But they will not discharge him from a detainer lodged against him by a third person while in custody under the judge's order. 2 Bos. & Pull.

282. 44 A defendant who has been arrest

ed in a foreign country may be arrested here again for the same cause of action. Maule v. Murray. 7 Term Rep. 470.

(And see Div. V. & AFFIDAVIT V.) 45 The court of C. P. refused to discharge a defendant holden to bail for a debt contracted in this country, out of custody on a common appearance, on an affidavit of his having become a bankrupt in Ireland, and there obtained his certificate, but put him to plead. Quin v. Keefe. 2 H. Black. 553.

(And see Div. V. and tit. JURISDICTION.) 46 In general a defendant cannot be held to bail twice for the same cause; but if he be discharged out of custody the first time for some act for which the plaintiff is not answerable; e. g. an alteration in the warrant to arrest by the sheriff's officer, without the plaintiff's knowledge, in such case the defendant may be again held to bail for the same cause of action. Housin v. Barrow. 6 Term Rep. 218.

(See ARREST I.)

47 Aliter, if for default of the plaintiff in not declaring in time, and the second writ be for the same cause of action in substance; though the first affidavit to hold to bail were adapted to a demand in trover for goods, and the second for money had and received, upon a supposition that the goods had been sold by the defendant for the plaintiff, and the money received to his use. Imlay v. Ellefsen. 3 East, 309. 48 Where a cause, in which the defendant has been holden to bail, is referred to arbitration, and the ar bitrator awards to the plaintiff a sum exceeding 10l. the defendant may be holden to bail again in an action upon the award. Collins v. Powell. 2 Term Rep. 756. 49 A defendant may be held to special bail in an action on a judgment for 10l. for damages and costs; though the original debt alone were under 10l. Lewis v. Pottle. 4 Term Rep.

570.

50 The defendant having been holden to bail, but afterwards discharged on a common appearance, on account of the plaintiff having declared on a different cause of action from that mentioned in the writ and affidavit, the court of C. P. held that he might be holden to bail again in an action on the judg ment. De-la-Cour v. Read. 2 H. Black. 278.

51 If a defendant, being arrested upon process in K. B. give a warrant

of attorney to confess judgment, and be afterwards holden to bail in C. B. in an action upon that judg ment, the court will discharge him upon a common appearance. Salkeld v. Lands. 2 Bos. & Pull. 416. 52 Where a defendant was arrested on a contract the legality of which was doubtful (under 7 G. 1, stat. 1, c. 21, see AGREEMENTS II.) and which might eventually subject the plaintiff to a penalty; the court of C. P. discharged the defendant on entering a common appearance. Sumner v. Green. 1 H. Blackstone,

301.

53 Where a certificated bankrupt had been holden to bail, for a debt due before his bankruptcy, the court of C. P. refused to discharge him on entering a common appearance, it appearing that his certificate was obtained by fraud. Vincent v. Brady. 2 H. Black. 1. (And see post V.)

54 If two actions be brought by the same plaintiff at the same time for causes which may be joined in one action, and the defendant is holden to bail in both, the court will compel the plaintiff to consolidate them and to pay the costs of the application. Cecil v. Brigges. 2 Term Rep. 639.

55 If the plaintiff hold two defendants to bail on a joint writ, and declare against them severally, the court will set aside the proceedings. Moss v. Birch. 5 Term Rep. 722. 56 None can be holden to special bail in detinue or trover without a judge's order. Reg. Gen. 9 East,

325.

57 Bail above having been put in and exception entered in the vacation, notice of justification for the first day of the next term must be given within four days after such exception. Neillson v. King. 9 East,

again upon bills of exchange given by him before he was rendered, as a collateral security for the damaages and costs recovered against him in the former action, and upon agreement for a stay of execution till default made in payment of the bills. Daniel v. Dodd. 8 East,

334.

59 Where the defendant in the action gave a cognovit for the debt and costs payable by seven instalments; and after the bail were fixed an act passed for discharging insolvent debtors in custody for debts due at a certain day, prior to the bail being fixed, at which day three only of the instalments were payable; and afterwards the principal was discharged under the act, when only two more of the instalments had become payable; yet held that the bail were liable for the whole condemnation money; the entire debt, qua debt, being due instanter, with a stay of execution only for certain portions at certain times. Shakespeare v. Phillips. 8 East, 433. 60 Bail who are indemnified, being sued upon the bail bond, file a bill in equity for an injunction, suggesting want of consideration for the original debt; and an injunction is granted pro tempore on condition of paying the debt into court; which is done accordingly, and afterwards the money is paid over: held that the bail were damnified by such payment of money into court, after notice to the debtor, and no fund provided by him; and not merely from the time when the money was taken out of court upon dissolving the injunction. For one who agrees to indemnify and save others harmless against a certain engagement, is bound to secure them from incurring an expence, as it runs on at the time, which falls upon them by virtue of that engagement. Sparks v. Martindale. East, 593. See also Turner v. Cary et al. 7 East, 607.

this country, in a suit brought against him by a person residing in a foreign country, on a contract made between the parties in their own country, where, by the laws of that country, the property of the debtor only is liable, and his person could not be arrested, either before or after judgment. Smith v. Spinolla. 2 Johns. Rep. 198.

8

4

298.

63 Where a defendant is taken in custody, in vacation, and the bail are excepted to, they may justify before a judge at his chambers. Fenn v. Smith. 6 Johns. Rep. 124. 64 After bail had become fixed, and judgment against them on the recognizance, the principal was discharged under the insolvent act: a ca. sa. was then issued against the bail, who paid the debt, and then brought an action against the principal; and it was held that he could not plead his discharge, as the debt was not made certain until after his discharge. Buel v. Gordon. 6 Johns. Rep. 126. 85 The proof of a debt necessary to hold to bail. 1 Dallas, 159. 66 The 12 G. 1, respecting proof of debts to hold to bail, was not in force, nor practiced under before the revolution. Ibid.

II. Of the Bail Bond. and Actions thereon.

1 In actions upon bail bonds need not shew an arrest. Haley v. Fitzgerald. 1 Str. 643.

2 Bail bond cannot be put in suit till

after four days from the appearance-day of the return of the writ. Bellis v. Mitford. 2 Blackstone,

Bail bond cannot be assigned till after four days from the return of the writ, and where the last falls on a Sunday the party has all Mouday to put in bail. Bullock v. Lincoln. 2 Str. 914.

Although the sheriff take a bail bond on the stat. Hen. 6, yet that is at his peril, and the plaintiff shall not be thereby concluded. Wolfe v. Collingwood. 1 Wils. 262. 5 The sheriff shall be charged for taking insufficient bail, and bond may be assigned. Etherick v. Cowper. 1 Salk. 99. In 1 L. Raym.

7

8

9

425, it is that he is liable to an action as well as to amerciaments. Proceedings were staid upon the bail bringing in the principal money and interest, and costs into court. Proceedings on the bail bond must stay if there is not return of a cepi corpus. 3 Salk. 55. Butler v. Rolls.

Action on bail bond given in a county palatine, on an action brought there, must be brought in the court below, and not here, unless special circumstances warrant Chesterton v. Middlehurst. 1 Burr. 642.

it.

In debt upon a bail bond by the sheriffs of Middlesex, though they stile themselves sheriffs in the declarations, and declare in the plural number, no objection can be tak en on that account, unless the bond appears upon the record to be a bail bond. Sheriffs of Middlesex v. Barnes. 2 L. Raym. 1135.

Action of debt, by the assignees of a bail bond, must be brought in the court where the original action was laid. Morris v. Rees. 2 Black. 838. 3 Wils. 348. and Walton v. Brent. 3 Burr. 1923.

10 4 Ann. c. 16. Sheriff may assign a bail bond out of the county, and the action brought where he assignment was made.

Thus in an action on a bail bond by the sheriff's assignee, the assignment may be stated to have been made out of the county in which

the arrest was made, and the bond taken. In such case the venue may be laid in the county in which the assignment is stated to have been made. Gregson v. Heather. 2 L. Raym. 1455. 2 Strange, 727. 11 Surrender of defendant before return of writ no reason for staying proceedings upon the bail bond. Harrison and another, assignees of the sheriff, against Davies and another. 5 Burrows, 2683. 12 Bail bond cannot be assigned when the original suit is out of court, for want of declaring in time. row v. Naylor and others. 2 Black.

876.

Spar

13 Bail bonds need not pursue the words of the return of process. Shuttleworth v. Pilkington. 2 Str.

1155.

14 A bail bond taken by the name of office, as solvend. eidem vicecomiti et assignatis sufficient. Symes v. Oakes. Shepherd v. Oakes. Lavender v. Oakes. 2 Strange, 893. 15 Under sheriff's clerk cannot assign a bail bond. Kitson v. Fagg. 1 Strange, 60. 16 The sheriff may take a bail bond upon an arrest under an attachment issued out of a court of law for a contempt. If a man who has given bail to the sheriff neglects to appear at the return of the writ, the court cannot prevent the party on whose account he was arrested from proceeding against the sheriff. The King v. Dawes. 1 L. Raym.

722. 2 Salk. 608.

17 A bail bond taken in more than double the sum sworn to by the plaintiff, is good. Norden v. Horsley. 2 Wils. 69.

18 If a person disqualified from being bail is put in and not excepted to, the plaintiff cannot proceed on the bail bond as if no bail had been put in. Thompson v. Roubell. 2 Doug. 467, n.

19 If plaintiff accepts an assignment of a bail bond, he cannot have a rule for the sheriff to return the writ. Lord Brooke v. Stone. 1 Wilson, 223,

24 Form of recognizance given in K. B. by a peeress, to answer an indictment for felony in the House of Lords. R. v. Kingston, (Dutchess.) Cowper, 284, n.

25 It is sufficient to state in the condition the names of the parties, and the time and place of the defendant's appearance: if the cause of action be added, it may be rejected as surplusage. Owen v. Nail. & Term Rep. 702.

26 Therefore where under an original writ in a plea of trespass on the case on promises, the sheriff took a bail bond conditioned for the defendant's appearance in a plea of trespass; it was held good. 6 Term Rep. 702.

27 A bail bond given to the sheriff of

Durham under a writ issued immediately from this court to him is not void; though the Count Palatine might have interposed and claimed his privilege. Jackson v. Hunter. 6 Term Rep. 71. 28 If it appear in a declaration by the

assignee of the sheriff on a bail bond, that the bond is void by the provisions of the statute 23 H. 6. c. 9. the court on motion will arrest the judgment, after verdiet, against the defendant, upon a plea of non est factum. 2 Term Rep. 569.

29 If a declaration on a bail bond conclude," whereby an action hath acerued to the plaintiff to demand and have of the principal," (instead of the bail,) and state non-payment by the principal; it is bad on a special demurrer. Morgan, Assinnee of Sheriff v. Sargent, one, &c. 1 Bos. & Pull. 58.

30 A sheriff's bond, stated to have been taken on the 4th November, conditioned for the defendant's appearance on the morrow of All Souls, [scil. 3d Nov.] is void by the statute. 2 Term Rep. 569,

31 The court refused to order a bail bond, given on an arrest in a penal action, to be cancelled, on an affidavit of the defendant that he was not the person who had incurred the penalty; and they left him to his plea in abatement. Salter q. t. v. Shergold. 3 Term Rep. 572. 32 The court will not set aside proeeedings, and order the bail bond to be delivered up, because a defendant has been arrested on a special capias, in which, as well as in the affidavit to hold to bail the initials only of his christian name were inserted. Howell v. Coleman. Bos. & Pull. 466.

2

(And see AMENDMENT II.) 33 The court of C. P. held that the sheriff might sue on a bail bond in a different court from that in which the original action was brought. Newman & al. v. Faucitt. 1 H. Black. 631.

34 But the court of K. B. held, that an action on a bail bond, by the officer to whom the bond was given, must be brought in the court where the original action was brought. Donatty v. Barclay. 8 Term Rep.

132.

33 Where a judgment against the principal is set aside, upon condition that the bail bond shall stand as a security, the bail, if sued upon the hond, are entitled to a rule to plead, and a demand of plea, before judgment can be signed against them. Evans v. Surman. New Rep. 63.

36 Final judgment may be entered in an action on a bail bond without a writ of inquiry. Moody v. Pheasant. 2 Bos. & Pull. 446.

37 Though the proceedings against the bail should be such as cannot be sent aside on the ground of irreg ularity, yet the court, if the bail apply to their equitable jurisdiction, will in all cases stay proceedings on the bail bond, where the plaintiffs, by their neglect, have forfeited their claim to institute proceedings against the bail. 3 Bos. & Pull. 222. (See Pigott v. Truste. 3 Bos. & Pull. 221. PRACTICE X.) 38 When the bail apply to stay proceedings upon the bail bond, or against the sheriff, they need not swear to merits, though a trial has been lost. Hardisty v. Storer. New Rep. 123.

39 Where two only of three joint contractors are sued, the court will not stay proceedings on the bail bond, unless the defendants will undertake not to plead in abatement. Govett v. Johnson. 2 Bos. & Pull.

465.

40 If after a procedendo to carry back a cause to an inferior court; the plaintiff recover, and then sue out a scire facias against the bail below, and they remove the proceedings against them into the court of K. B. by habeas corpus, that court will award a procedendo in the suit against the bail. Dixon v. Heslop, et al. 6 Term Rep. 365.

41 No bail bond taken in London or Middlesex under process returnable in C. P. on the first return of a term, shall be put in suit until after the 5th day, nor bonds taken elsewhere until after the 9th day in full term: nor if under process returnable on subsequent returns, until after four days and eight days respectively, exclusive of the return day of the process. Reg. Gen. 1 H. Black. 525, 6.

42 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 ap