Geo. IV. c. 108, § 99, where persons arrested by capias, at the king's suit, give bail, the sheriff is required to assign the bail bond to the king, at the request of the prosecutor. The bail bond, it is said, may be assigned before it is forfeited, though it cannot be put in suit till afterwards. (e)[A] And, in the King's Bench, if the bail do not justify in four days after exception, the plaintiff is at liberty to proceed upon the bail bond; although from the bail having been put in sooner than was necessary, the rule for bringing in the body has not expired, and the sheriff is not liable to an attachment:(f) And, in that court, it has been holden, that if the fourth day for perfecting bail be the last day of term, and the bail be not perfected before the rising of the court on that day, an assignment of the bail bond to the plaintiff, in the evening of that day, is regular.(g) In the Common Pleas it is a rule, that "no bail bond taken in London or Middlesex, by [ *299] virtue of any process issuing out of that court, returnable on the first return of any term, shall be put in suit until after the fifth day in full term; and that no bail bond taken in any other city or couuty, by virtue of such process, shall be put in suit until after the ninth day in full term: and that no bail bond taken in London or Middlesex, by virtue of any process issuing out of that court, returnable on the second or any other subsequent return, shall be put in suit until after the end of four days exclusive of the day on which such process shall be expressed to be returnable; and that no bail bond taken in any other city or county, by. virtue of such last-mentioned process, shall be put in suit until after the end of eight days exclusive of the day on which such last-mentioned process shall be expressed to be returnable; upon pain of having all proceedings upon such bail bonds to the contrary, set aside with costs."(a) After default made in putting in special bail in time, it is not enough that bail are afterwards put in: but the plaintiff may take an assignment of the bail bond, and proceed thereon, unless the bail be also justified, though not before excepted to.(b) And where the defendant had neglected to put in and perfect bail above, the court of King's Bench held that the plaintiff was not out of court, by omitting to declare in the original action, within two terms after the return of the writ; but he might still take an assignment of the bail bond:(c) for he was not bound to declare de bene esse, within the time limited for the defendant's appearance, and after that time he could not declare, until the defendant had actually appeared. But where the plaintiff is completely out of court, by not declaring in the original action within a year after the return of the writ, or, in the Common Pleas, before the end of the vacation of the second term after it is returnable, it seems that he cannot afterwards regularly take an assignment of the bail bond :(d) And in the latter court, though the assignment (e) Barnes, 77. (f) 4 Barn. & Cres. 864. 7 Dowl. & Ryl. 374, S. C. (g) 8 Durnf. & East, 4. (a) R. T. 30 Geo. III. C. P. 1 H. Blac. 525, 6; and see a former rule of H. 9 Ann, reg. 4. C. P. 2 Blac. Rep. 1009. (b) 7 East, 607. (c) 2 Str. 1262. Carmichael v. Chandler, T. 24 Geo. III. K. B. Imp. K. B. 10 Ed. 149; and see 2 East, 442. Prac. Reg. 71. 3 Price, 259. (d) 2 Blac. Rep. 876; and see 4 Taunt. 715. 5 Taunt. 649. [A] Where the plaintiff takes an assignment of the bail bond from the sheriff, and sues the bail to insolvency, this is no discharge of the sheriff's liability for taking insufficient bail, nor an estoppel of the plaintiff's right of action against him. Bennett v. Brown, 1 Strobh. 303. of the bail bond be regular, as being taken while the action was pending, yet if the plaintiff be afterwards guilty of laches, to the prejudice of the bail, the court will stay the proceedings thereon.(e) The plaintiff, however, may proceed against the bail, although the action be out of court, if it do not appear that it was out of court before the plaintiff took an assignment of the bail bond.(f) In the Exchequer, the court on motion will stay proceedings against bail, on payment of costs, although the plaintiff has neglected to proceed against them on the bond, as early as he might have done, if the bail had any reason to think that the plaintiff did not mean to proceed in the action, such as the bankruptcy of the [*300] defendant. But when a trial has been lost, the bail bond will be ordered to stand as a security, if the bail have not applied to stay proceedings on the earliest opportunity.(aa) The assignment may be made by the high sheriff, or by the under-sheriff in his name, and even by the under-sheriff's clerk in his office: (bb) And as the assignment may be made, so the action may be brought, in any county.(cc) It was formerly usual for the plaintiff to bring several actions, against the principal and his bail, upon the bail bond; but this practice being considered unnecessary and oppressive, was discountenanced by the court of King's Bench in a recent case, (dd) where the assignee of a bail bond brought separate actions thereon, without suggesting any sufficient reason for so doing; and the court, under the discretionary power vested in them by the statute 4 & 5 Ann. c. 16, § 20, stayed the proceedings in all the actions, upon payment of the costs of one of them. The action upon the bail bond must necessarily be brought in the same court whence the process issued, on which the bond was taken; (ee) otherwise the parties could not have the relief intended by the statute. This rule applies, in the King's Bench, to actions brought on the bail bond by the sheriff himself, as well as his assignee:(ff) but it is otherwise in the Common Pleas, (g) and Exchequer,(h) where the sheriff may sue on the bail bond in a different court: And although it be irregular to bring an action on the bail bond, in a different court from that in which the original action was commenced, yet the defendant cannot take advantage of this, under the plea of non est factum.(i) When the plaintiff has taken an assignment of the bail bond, he cannot proceed in the original action, so long as he retains his right to sue upon it.(k) The proceedings on the bail bond may be set aside, with costs, if irregu lar; or stayed, if regular, upon terms, at the instance of the defendant,() (e) 3 Bos. & Pul. 221. (f) 4 Taunt. 715. And see further, as to the forfeiture and assignment of the bail bond, Petersd. Part I. Chap. VI. 3. (aa) 3 Price, 257. And see 7 Price, 535. 13 Price, 115, 16. 1 Younge & J. 373, post, 302, 303, (1). (bb) Per Lord Mansfield, in Harris v. Ashley, Sit. Mid. M. 30 Geo. II. French v. Arnold, T. 5 Geo. III. 1 Str. 60, (1). 4 Campb. 36; and see 5 Barn. & Ald. 243; but see Kitson & Fugg, 1 Str. 60. 10 Mod. 288, S. C. contra. (cc) 2 Str. 727. 2 Ld. Raym. 1455, S. C. (dd) 2 Barn. & Ald. 598. 1 Chit. Rep. 337, S. C. (ee) 1 Bur. 642. 2 Ken. 369, S. C. 3 Bur. 1923. Barnes, 92, 117. 3 Wils. 348. 2 Blac. Rep. 838, S. C. (f) 8 Durnf. & East, 152; but the action in this case had been removed from an inferior court. (g) 1 H. Blac. 631. (h) 8 Price, 174. (i) 2 Campb. 396. (k) Eaton v. Beattie, E. 45 Geo. III. K. B. 2 Smith R. 489, S. C. 4 Taunt. 715. 1 Chit. Rep. 394, in notis. 9 Price, 407. (7) Barnes, 74. or of the sheriff or his bail, in order that there may be a trial in the original action. And the rule for staying the proceedings may be obtained on the same day that the bail justified.(m) The causes of irregularity are as various as the different proceedings out of which they arise. In general, the irregularity is in the writ, as that it was returnable on a day out of term, (n) &c.; or in the affidavit to hold to bail, arrest, bail bond, or exception to bail; or that the bond was put in suit before it was forfeited. *When a bail bond has been improperly taken, the court will [ *301 ] order it to be delivered up to be cancelled: And the assignment of a bail bond was set aside, as having been made pending a rule to set aside proceedings for irregularity, and to stay proceedings in the mean time; the proceedings being suspended thereby for all purposes, till the rule was discharged.(a) So, the proceedings on the bail bond were set aside where the assignment was taken after the defendant had given a cognovit, without the knowledge of the bail, for payment of the debt and costs.(6) But when a defendant obtains a rule which stays the plaintiff's proceedings, he is not entitled, after it is discharged, to the same time for the purpose of taking the next step, as he had when he obtained the rule; though the defendant in such case should have a reasonable time allowed him, for the purpose of taking his next proceeding; and it has been determined, that the whole of the day on which the rule is disposed of, is a reasonable time for that purpose. (c) Where the plaintiff took an assignment of the bail bond, and afterwards gave notice of exception to the bail, without entering it, the court of King's Bench held that the plaintiff's irregularity, in not entering an exception, was not waived by the defendant's having given two notices of justification, under one of which the bail had justified, and therefore held that the proceedings should be stayed; (d) but they would not order the bail bond to be delivered up to be cancelled.(d) When the defendant has been arrested by a wrong name, the courts will order the bail bond to be delivered up to be cancelled.(e) But it cannot be cancelled, in the King's Bench, on the ground of the plaintiff's attorney having neglected to take out his certificate ;(f) or because the place where the affidavit to hold to bail was sworn, is not mentioned in the jurat.(g) So, if a non-commissioned officer has been arrested and given bail, the court of Common Pleas will not, after judgment recovered against the bail, set aside the proceedings, and cancel the bail bond:(h) And, in that court, if the plaintiff sue out writs into two counties, and arrest the defendant, who gives bail to the sheriff in both, the plaintiff may regularly proceed on the first bail bond.(i) In the Exchequer, when the bail do not appear to justify on the day mentioned in the notice, but on a subsequent day according to further notice, and the plaintiff, on the morning of the latter day, take an assignment of the bail bond, and sue out process thereon, the proceedings are regular, although the rule for the allowance of bail be served on the (m) 2 Chit. Rep. 108. (a) 4 Durnf. & East, 176. (b) 4 Barn. & Ald. 91. Ante, 295. Post, 305. (n) 1 Str. 399. (e) 5 Barn. & Cres. 771; and see Barn. & Cres. 970. 7 Dowl. & Ryl. 458, S. C. (d) 1 Chit. Rep. 174. (e) 4 Maule & Sel. 360. 1 Chit. Rep. 282. 2 Chit. Rep. 357. 8 Moore, 526. 1 Bing. 424, S. C., though it was formerly otherwise: 3 Durnf. & East, 572. 2 Bos. & Pul. 109. (f) 1 Dowl. & Ryl. 215. Ante, 77. (h) 4 Taunt. 557. (g) 1 Bos. & Pul. 105. (i) 2 Taunt. 67; and see 1 Chit. Rep. 392. same day nor is it a waiver of the assignment, that the plaintiff attended to oppose the justification of bail.(k) *In the King's Bench, by a modern rule of court, (a) “no rule [*302] can be drawn up for staying proceedings regularly commenced on the assignment of a bail bond, unless the application for such rule, if made on the part of the original defendant, be grounded upon an affidavit of merits;(b) or, if made on the part of the sheriff or bail, (c) or any officer of the sheriff, (dd) be grounded upon an affidavit, showing that such application is really and truly made on the part of the sheriff or bail, or officer of the sheriff, (as the case may be,) at his or their own expense, and for his or their only indemnity, and without collusion with the original defendant." This rule, it will be observed, only applies to staying proceedings regularly commenced on the assignment of a bail bond: And they cannot be stayed, where the motion is made on behalf of the defendant, without an affidavit of merits, although the plaintiff has opposed the justification of bail, and received the costs of opposition. (ee) The affidavit, if made on behalf of the defendant, must expressly state, that he has a good defence to the action upon the merits; an affidavit that he has a good defence to the action merely, not being sufficient :(f) And if the application be made by the bail, after notice of render has been given, the affidavit must state that the application is made bona fide, on their behalf:(gg) But when an affidavit of merits is produced, it is not necessary to state on whose behalf the motion is made. (hh) In the Common Pleas, on motion by the bail to stay proceedings on the bail bond, or against the sheriff, on payment of costs, the court do not require the bail to swear to merits; nor is there any distinction in this respect, whether a trial has been lost or not.(ii) In the Exchequer, when a trial has not been lost, the court on motion will stay proceedings on an assignment of a bail bond, the defendant having since put in and perfected bail, without payment of costs, or any affidavit of merits, or that the application is made in ease of the sheriff, or bail;(kk) nor will they order the bail bond in such a case to stand as a security, but only require that the plaintiff shall be put in the same situation as if the bail had justified in due time.(1) And where an attorney has become bail to the sheriff, and the bail bond has been assigned, the court will upon the usual affidavit, stay the proceedings upon the bail bond, upon payment of the costs. 1 Younge & J. 367. And they refused to order a bail bond to stand as a security, where the plaintiff had lost a trial by his own conduct, in not accepting reasonable terms offered him by the defendant.(m) But when a trial has been lost, the bail bond must stand as a security.(n) And the court will not stay proceedings on a bail bond, upon the ground that the affidavit upon which the bail above were rejected was founded on perjury, except upon the usual terms of paying the costs incurred by the assignment and subsequent proceedings. 1 Younge & J. 403. When the proceedings on a bail bond are irregular, or against good faith, it is not necessary to put in and perfect bail in the original action, in order to set them aside :(0) And if the defendant be surrendered by his bail above, though without justifying, after the time allowed them for justification has expired, the court of King's Bench, we [*303 ] have seen, will stay the proceedings on the bail bond, upon payment of costs. (a) But when the proceedings are regular, and the defendant, not having been surrendered by his bail above, applies to stay them upon terms, he must in general put in and perfect bail above, before the application is made :(b) Yet, upon particular occasions, the rule to stay the proceedings may be, upon condition that the defendant shall put in and perfect bail.(c) And, whenever the defendant is guilty of a neglect, in not putting in bail in due time, by which the bail bond becomes forfeited, the notice, in case the party mean to put in bail, (in order to stay the proceedings upon the bail bond,) should be, that he will put in and perfect bail on such a day; when the plaintiff may oppose them in court, without its being a waiver of the bail bond.(d) Bail above, when necessary, being put in and perfected, the court should be moved in term time, or an application made to a judge in vacation, (e) for a rule or summons to stay the proceedings on the bail bond, on payment of costs, and that in the meantime all proceedings be stayed; and it is usual to draw up the rule for the allowance of bail, with the rule or summons for staying the proceedings, and serve them both together. In the Common Pleas, notice of the intended motion should be given to the plaintiff's attorney, and "why in the meantime all proceedings should not be stayed;" otherwise the court will not add these words to the rule.(f) When the plaintiff has not lost a trial, the court in term time, or a judge in vacation, will stay the proceedings on the bail bond, upon putting in and perfecting bail above, and paying the costs incurred by the assignment of the bail bond, to be taxed by the master in the King's Bench, or prothonotaries in the Common Pleas and also, if necessary, or the cause require it, (g) upon receiving a declaration in the original action, pleading issuably, and taking short notice of trial, so that the cause may be tried the same term.(7) But if the plaintiff has lost a trial, the court or a judge will further require the bail to consent, that the bail bond shall stand as a security, even when the defendant has been surrendered by his bail.(i) By losing a trial is meant, that the plaintiff has been prevented, by the neglect of the defendant to put in or perfect bail in due time, from trying his cause in, and obtaining judgment of the same term in which the writ was returnable.(k) This of course can only happen in town causes, or where the venue is laid in London or Middlesex ;(l) and depends on the *state of [ *304 ] (0) 4 Moore, 149. (a) 5 Durnf. & East, 401, 534. 7 Durnf. & East, 297, 529; and see 8 Durnf. & East, 222. Ante, 282. (b) 4 Moore, 149. (d) Cowp. 769. (f) Imp. C. P. 7 Ed. 142. (c) Per Buller, J. H. 20 Geo. III. K. B. (h) R. M. 8 Ann, reg. 1, (c), K. B. Cowp. 71. 1 Bos. & Pul. 334. (i) 2 Barn. & Ald. 585. 1 Chit. Rep. 270, S. C. (k) 1 Chit. Rep. 270, (a), 357, (a); and see 1 Dowl. & Ryl. 450. 8 Dowl. & Ryl. 140. 9 Moore, 422. 2 Bing. 227, S. C. (1) In country causes, it has not been usual, on staying proceedings on the bail bond, when a trial has been lost, to require the bail to consent that the bond shall stand as a security; though there seems to be the same reason for it, as in town causes and see 7 |