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. By sect. 24, the act is to extend to all courts of record within the kingdom. But it does not apply to proceedings in equity (e). In Kitson v. Fagg, 1 Str. 60, the question being, whether a bail bond was well assigned by an under-sheriff's clerk? Parker, C. J., said, that he had the advice of all his brethren, and they were of opinion, that an under-sheriff might assign a bail bond in the name of the high-sheriff, it having been the constant practice ever since the 4 Ann.; but that if the assignment was neither by the sheriff, nor his under-sheriff, as in this case, it would not be good. In debt on a bail bond, the defendant pleaded that there was not any assignment of the bond by the sheriff or under-sheriff. It appeared in evidence, that the bond had been assigned by one of the under-sheriff's clerks. The case of Kitson v. Fagg was cited as an authority to show that this was not a good assignment. But Lord Mansfield, C. J., was clearly of opinion, that the seal to the assignment, being the seal of office, was sufficient to give it validity, whoever had signed it. Harris v. Ashley, Lond. Sitt. M. T. 1756, MS. The assignment is good, though the sheriff be out of office; the act does not say it shall be done during the shrievalty (f). Although by this statute the court where the action was brought was expressly authorized to exercise an equitable jurisdiction, yet upon the supposition that every other court, except that where the original action was brought, was incompetent to exercise that jurisdiction, it was formerly held, that an action on the bail bond, whether brought by the assignee (g) or the officer (h), must be brought in that court where the original action was commenced. Now, by R. G. 83, H. T. 1853, the sheriff himself may sue in any court; but the assignee must still, as formerly, bring his action in the same court from which the process issued; advantage, however cannot be taken of the action having been brought in a wrong court, upon the plea of non est factum (i). The assignment may be made in a different county from that in which the bail bond was given, and the venue may be laid in any county. Debt upon a bail bond; and plaintiff declares that he sued out a writ directed to the sheriff of Surrey, &c, who took a bail bond, which he afterwards assigned to the plaintiff at London, where the action was brought. Demurrer, on the ground that the action was founded on the bond entered into by the bail, and, that being laid to be done in Surrey, the action should have been there; but judgment for the plaintiff (k). Declaration. It is sufficient for the plaintiff to state in his declaration, that the sheriff assigned the bond to him according to the statu e, without adding, that "the assignment was under the hand and seal of the sheriff;" and the defendant may plead, that he did not assign, &c., according to the statute, on which issue the plaintiff must prove that the assignment was, according to the statute, under the hand and seal of the sheriff (1). So though the statute requires the indorsement to be made by the sheriff in the presence of two witnesses, yet it is not necessary to set forth the names of the witnesses in the declaration (m), or to aver that the assignment was made in the presence of two credible witnesses ("), or that the indorsement was attested by two credible witnesses (0). Nor is it necessary to state in the declaration, that the defendant in the original action was arrested (p), nor that the debt was sworn to by the plaintiff, nor that the sum sworn to was indorsed on the writ (q). Bail to the sheriff are liable to the plaintiff's whole debt (without regard to the sum sworn to) and costs, to the extent of the penalty of the bail bond (r). After a defendant has been discharged out of custody upon the bail bond being given, it is neither in the power of the bail to render him, nor of the party to surrender himself again into the custody of the sheriff before the return of the writ, without the consent of the latter (s). But the sheriff may, if he pleases, accept the surrender of the party, who is willing to return into his custody, before the return of the writ. And if the sheriff consents to do so, and by virtue of such surrender has the defendant in his custody at the return of the writ, the court will then consider it as if no bail bond had been given: and, consequently, an action cannot, under these circumstances, be maintained against the sheriff for not assigning the bail bond (t); nor can he be proceeded against for not bringing in the body, although, upon being ruled to return the writ, he returned cepi corpus (u). (k) Gregson v. Heather, 2 Str. 727. (1) Dawes v. Papworth, Willes, 408. (m) Robinson v. Taylor, Fort. 366. (n) Lewis v. Parkes, 3 M. & W. 133. (0) Leafe v. Box, 1 Wils. 121, where it was held that a profert of the assignment was not necessary, the assignment not being by deed. See now Com. Law Proc. Act, 1852, sect. 55. (p) Taylor v. Clow, 1 B. & Ad. 223. Pleadings. To an action of debt by the assignee of the sheriff upon a bail bond, non est factum may be pleaded. If issue be joined on non est factum, the only proof required on the part of the plaintiff (supposing there is not any other plea) is proof of the execution of the bail bond by the defendant (x); for the plea of non est factum does not put in issue any other allegation in the declaration; consequently, in such case, it is not necessary to prove the writ, assignment by the sheriff, &c. In debt on bail bond, the defendant may plead performance of the condition, viz. under the 1 & 2 Vict. c. 110, that bail was put in and perfected, concluding with "as by the record of the recognizance remaining in the said court" (or the Court of Q. B. as the case may be) "fully appears;" for the recognizance being entered of record, is not triable by jury, but by the record (y). If the recognizance is not entered of record, the bond is, it seems, forfeited (≈). To such a plea the plaintiff may reply nul tiel record, viz. that there is not any such record of the recognizance. When the record is of the same court, this replication ought to conclude with giving a day to the defendant (a). This constitutes a complete issue of fact; and if in this case the defendant should demur to the replication, the plaintiff need not join in demurrer; but if the record is not produced at the day, the plaintiff may sign judgment (b). When the record is of another court, the court gives the defendant a day to bring it in (c). If the record is not brought into court on the day, judgment of failure of record is given (d). To an action (e) of debt on a bail bond to the plaintiffs as sheriff of Middlesex, the defendant pleaded, that the action was brought by the plaintiffs, for the benefit of, and as trustees for, J. S. (the sheriff's officer,) by whom the defendant had been arrested, and to whom the defendant, after the return of the writ, but before the sheriff had been ruled to return the same, paid the debt and costs, which J. S. accepted in full satisfaction of the bond; and that if any damage had accrued for default of the defendant's appearance, according to the condition of the bond, it was occasioned by the default of the sheriff's officer not paying over the debt and costs to the plaintiff in the action, which would have been accepted by such plaintiff. It was contended, that to debt on bond the defendant might plead, that it was given to the plaintiff in trust for another; so as to let the defendant into a defence which he might have against the cestui que trust. The court, however, were of opinion that the plea was bad; Lord Ellenborough, C. J., observing, that as the officer could not have released the bond, he could not accept anything in satisfaction of it; and further, that it was (x) 10 Pl. R. H. T. 1853. (y) Bret v. Sheppard, 1 Leon. 90. (z) Corbet v. Cook, Cro. Eliz. (466). (a) Cremer v. Wickett, Ld. Raym. 550; Chitt. Forms, 458 (7th edit.) (b) Tipping v. Johnson, 2 B. & P. 303; R. G. 38 H. T. 1853. (c) Sandford v. Rogers, 2 Wils. 113. not alleged that the bond was originally given to the sheriff in trust for the officer; nor did it appear how he afterwards came to have any equitable interest in it; consequently this was not brought within the case cited. Lawrence, J., animadverted on the plea, as being an attempt to set up matter as a legal defence, which was nothing more than an equitable practice of the court in exercising a summary jurisdiction over its officers. So bail cannot plead the bankruptcy and certificate of their principal in their own discharge (f). By R. G. 84, H. T. 1853, in all cases where the bail bond shall be directed to stand as a security, the plaintiff shall be at liberty to sign judgment upon it. By R. 85, proceedings may be stayed on payment of costs in one action, unless sufficient reason be shown for proceeding in more. See Key v. Hill, 2 B. & Ald. 598. V. Debt on Bond, with Condition to perform Covenants. At common law, it was usual for the obligee of a bond, with a penalty conditioned for the performance of covenants contained in another deed, to declare on the bond merely; to which the defendant usually pleaded performance generally; to this the plaintiff replied a breach of one of the covenants; and upon issue joined, and proof of such breach, the plaintiff was entitled not only to recover the penalty, that being the legal debt, but also to take out execution for the same: although the penalty far exceeded, in amount, the damages which he had sustained by the breach of covenant. Under these circumstances, the defendant could only obtain relief through the interposition of a court of equity, which would direct an issue of quantum damnificatus, and prevent any execution being enforced for more than the damage actually sustained. To prevent plaintiffs, in cases of this kind, from converting that power, which the strictness of the common law gave them, into an engine of oppression, and to avoid the circuitous mode of relief to which defendants were compelled to resort, it was enacted by 8 & 9 Will. III. c. 11, s. 8, that-In actions upon any bond, or penal sum, for the non-performance of any covenants or agreements contained in any indenture, deed, or writing, the plaintiff may assign as many breaches as he shall think fit, and the jury, upon the trial of such action, shall assess not only such damages and costs as have been heretofore usually done in such cases, but also damages for such of the assigned breaches as the plaintiff shall prove to have been broken; and like judgment shall be entered on such verdict as heretofore hath been usually done in such like actions. (f) Donnelly v. Dunn, 2 B. & P. 47. This statute is not confined to cases where the bond is conditioned for the performance of covenants in some other instrument than the bond; the condition of the bond is an agreement in writing within the statute (g). Neither is the statute confined to cases where there is a penalty to secure the performance of an act, on the non-performance of which the obligee would be entitled to recover uncertain damages: but it extends also to cases where the agreement is for the payment of a certain sum; as to bonds conditioned for the payment of an annuity (h), or the payment of a debt by yearly instalments (i). So it extends to bonds conditioned for the performance of an award, although it appears that only a single sum is to be paid on the bond; for the condition being to perform an award, in other words, to perform an agreement, comes directly within the words of the statute (j). But as the great object of the statute was to take away the necessity of applying for relief to a court of equity (k), it does not extend to bail (1), or replevin (m), or post obit (n) bonds, or to a warrant of attorney to enter up judgment, given as a security for a debt on demand (0), or to a bond with a penalty conditioned for the payment of money at a given day, with a stipulation that on any default in paying the interest, the whole sum should be demandable (p); for in these cases the court can relieve the defendant without his being compelled to file a bill in equity. Nor does the statute extend to common money bonds, that is, bonds with a penalty conditioned for the payment of a less sum of money at a day or place certain (q), for in cases of this kind defendants are sufficiently protected against an unconscientious demand of the whole penalty, by 4 Ann. c. 16, s. 13, by which it is enacted, that, if at any time pending an action upon any such bond, the defendant shall bring into court the principal, interest, and costs of suit, the same shall be taken in discharge of the bond, and the court shall give judgment accordingly. The statute having been made for the protection and relief of the defendants, the words, "may assign," have been construed to be compulsory on the plaintiff, Hardy v. Bern, 5 T. R. 636; as have the words, "may suggest," in the subsequent part of the statute, where the defendant suffers judgment by default, Roles v. Rosewell, 5 T. R. 538; or the plaintiff obtains judgment on demurrer, Walcot v. Goulding, 8 T. R. 126. But it is not necessary, though not unusual, to assign the breaches in the declaration; it may be done in the replication, in answer to the defendant's plea of per (g) Collins v. Collins, 2 Burr. 826. (n) Stair v. Earl of Murray, 2 B. & C. 82. (o) Shaw v. Marquis of Worcester, 6 Bingh. 385. (p) James v. Thomas, 5 B. & Ad. 40. |