assignment may be taken at any time, even before the bond is forfeited; or after forfeiture, and, since stat. 1 & 2 Vict. c. 110, after the plaintiff shall have taken a step or steps in the cause, as he may now proceed in the original action as well as against the bail, at the same time. Betts v. Smith, 10 Law, J. 305 qb. But the plaintiff cannot take an assignment of the bail bond after the defendant is rendered, Shaddocks v. Bullcock, 1 B. & P. 325, or after the cause is out of court, for default of the plaintiff's proceeding. Sparrow v. Naylor, 2 W. Bl. 876. And see Pigott v. Truste, 3 B. & P. 221. Collett v. Bland, 4 Taunt. 715. By taking the assignment, the plaintiff waives his right of ruling the sheriff to return the writ or bring in the body; Ld. Brooke v. Stone, 1 Wils. 223; or if he first proceed against the sheriff, he cannot afterwards bring an action on the bond, pending the rule to bring in the body. R. G. H. 2 W. 4, s. 23. Whittle v. Oldacre, 7 B. & C. 478. See Blachford v. Hawkins, 1 Bing. 181. Pople v. Wyatt, 15 East, 215.

The bond is forfeited, if the defendant do not put in bail on or before the eighth day from the time of the arrest, the day of the arrest being reckoned inclusive; 2 W. 4, c. 39, sch. No. 4; at any time after which, and before bail is actually put in, an action on the bond may be commenced. Id. Hillary v. Rowles, 5 B. & Ad. 460. Or if bail have been put in on or before the eighth day, and the plaintiff except to them, and the defendant fail to justify them within the time limited for that purpose by the practice of the court, the bond is then forfeited, and the sheriff or his assignee may thereupon commence an action upon it. Bond v. Evans, 4 B. & C. 864. Bellis v. Mitford, 2 W. Bi. 1009. Wright v. Walker, 3 B. & P. 564. Even if the bail justify, but the rule of allowance be not served in time, the plaintiff may commence his action upon the bail bond on the day after the time for justification has expired, and before the rule of allowance is served. Bignold v. Lee, 1 B. & C. 285. But he cannot commence his action, that is, he cannot sue out a writ against the bail, until default has been made, as above mentioned, even although the writ be not served until after the bond is forfeited; Alston v. Underhill, 1 Cr. & M. 492. See Edwards v. Danks, 4 Dowl. 357; nor can he commence his action, after the bail have justified and the rule of allowance has been served, even although the bond was forfeited before justification; Ellis v. Bates et al. 2 Cr. & M. 143; nor after a judge's order giving the plaintiff judgment in the original action. Isaac v. Ricardo, 4 Mees. & W. 382.

Action.] If the action be by an assignee of the sheriff, it must be brought in the court which issued the process on which the bail bond was taken; Chesterton v. Middlehurst, I Burr. 642. Walton v. Bent, 3 Wils. 348, 2 Saund. 61 a; but if brought by the sheriff himself, it may be commenced in any

court. R. G. H. 2 W. 4, s. 28. The bond being joint and several, you may bring a joint action against all the parties, or separate actions against each; and it seems to have been decided that you may bring a joint action against two out of three parties to it. Knowles v. Johnson, 2 Dowl. 653. But as the bringing of separate actions against each party is deemed oppressive, you must take care not to do so, without sufficient cause; for otherwise, if the bail move to stay the proceedings on the bail bond, on payment of the debt, the court will oblige them to pay only the costs of one action, R. G. H. 2 W. 4, s. 30, Key v. Hill, 2 B. & A. 598, if the application be made within a reasonable time. Johnson v. M'Donald, 2 Dowl. 44.

The process is the ordinary writ of summons, "in debt on bail bond." It is not necessary to indorse the amount of the debt and costs upon it. Rowland v. Dakeyne, 2 Doul. 832. Smart v. Lovick, 3 Dowl. 34. Get your declaration drawn by counsel or a pleader; and proceed in the action as in ordinary cases. If the defendant allow judgment to go by default, a writ of inquiry, or suggestion of breaches, will not be necessary; Moody v. Pheasant, 2 B. & P. 446; if the cause be tried, the verdict upon the general issue will be for the debt, namely the penalty in the bond, and one shilling damages, and the judgment will be accordingly. The bail are liable, not merely for the sum sworn to, but for the actual amount of the debt, and the costs in the original action, to the extent of the penalty, Mitchell v. Gibbons, 1 H. Bl. 76. Orton v. Vincent, Cowp. 71. Savage v. West, Cowp. 71 cit. Stevenson v. Cameron, 8 T. R. 28. Heppel v. King, 7 T. R. 370, notwithstanding (it should seem) the general rule of H. 2, W. 4, s. 21, mentioned post p. 201, which relates to bail above; for the penalty of the bail bond being the debt, the plaintiff has a right to recover to that extent for any damage he may have received from the breach of the condition. And although the execution must pursue the judgment, and be for the whole amount of the penalty and costs, yet if the debt and costs in the original action do not amount to the penalty, you must indorse your writ of execution, accordingly, to levy the amount only of such debt and costs, and the costs in the action on the bail bond. If the plaintiff take the bail in execution under a ca. sa, he cannot afterwards proceed in the original action against the principal. See Allen v. Snow, 2 M. & S. 341.

Bail discharged, how.] If the defendant die, before the plaintiff could have had judgment against him, the court will stay the proceedings on the bail bond, on payment of costs; but if he could have had judgment, the bail must pay the debt and costs in the original action also. Orton v. Vincent, Cowp. 71. If the principal become bankrupt and obtain his certificate

before the bond is forfeited, Woolley v. Cobbe, I Burr. 24. Cockerill v. Owston, Id. 436, or the bail become bankrupt and obtained their certificate after the bond is forfeited, Coulson v. Hammond, 2 B. & C. 626. Slatter v. Scott, 2 Cr. & M. 475, S. C. nom. Streeter v. Scott, 2 Dowl. 362, the court will stay the proceedings on the bail bond, without costs; but if the principal become bankrupt, &c. after the bond is forfeited, the bail cannot be relieved. Id. But if they do not pay the money until after the bankruptcy, they may sue the bankrupt for the amount, notwithstanding his certificate; for bail, not being sureties within the meaning of the bankrupt law, Hewes v. Mott, 6 Taunt. 329, cannot prove upon the estate, and therefore are not barred by the certificate. If the defendant be sent out of the country, under the Alien Act, before the bail bond becomes forfeited, the court, upon application, will stay any proceedings upon it, or perhaps order it to be delivered up to be cancelled. See Postell v. Williams, 7 T. R. 517. If the plaintiff take a cognovit from the defendant, and give him time for the payment of the debt and costs, he thereby discharges the bail, Farmer v. Thorley, 4 B. & A. 91, provided the time thus given defers the payment beyond the time at which the plaintiff could regularly obtain judgment. Formerly, if the defendant were rendered, and notice of render served before the return of the writ, the court would stay any proceedings upon the bail bond, or would deliver it up to be cancelled; Jones v. Lander, 6 T. R. 753. Stamper v. Milbourne, 7 T. R. 122. Anon. 2 Chit. 103; but it has been holden that, since the Uniformity of process Act, a render before the bail bond is forfeited, will not discharge the bail. Hodgson v. Mee, 5 Nev. & M. 302, overruling Turner v. Brown, 2 Dowl. 547. If the defendant be misnamed in the writ, the court will order the bail bond to be delivered up to be cancelled, unless the plaintiff shew that he used due diligence to ascertain the right name. Ante, p. So, if the affidavit to hold to bail be defective, the court will order the bail bond to be delivered up to be cancelled. Ante, p. If the writ be indorsed for a greater sum than that specified in the judge's order, the court will order the bail bond to be delivered up to be cancelled. Semb. See Cook v. Cooper, 7 Ad. & El. 605. And generally, in all cases in which the court will discharge a defendant for any irregularity in the capias, &c. they will in the like cases order the bail bond (if one have been executed) to be delivered up to be cancelled; provided the application be made within a reasonable time. See Gurney v. Hopkinson, 3 Dowl, 189. But the court will not set aside the proceedings upon the bail bond, merely because the defendant was not in fact arrested. Call v. Thelwell, 3 Dowl. 443. And they have refused to cancel it, on the ground that the defendant could not find the plaintiff, the affidavits not stating that the

defendant was unacquainted with him. Brown v. Moore, 4 Bing. 148.

Regular proceedings set aside.] By stat. 4 Ann. c. 16, s. 20, it is enacted that the court, in which an action is brought upon a bail bond by the assignee, may by rule "give such relief to the plaintiff and defendant in the original action, and to the bail upon the said bond or other security taken from such bail, as is agreeable to justice and reason; and that such rule or rules of the said court, shall have the nature and effect of a defeasance to such bail bond or other security for bail." If, therefore, the bail bond be forfeited, and an action brought upon it, the court will in general stay the proceedings upon payment of costs, and putting the plaintiff in the same situation as if no default had been made. See Callan v. Tye, 2 H. Bl. 235. And the court have done this, even after execution against the bail, and the money in the sheriff's hands. Lepine v. Barrett, 8 T. R. 222. In the first place, therefore, and before the application is made, bail must be put in and justified, Heath v. Gurley, 4 Moore, 149. Boughton v. Chaffey, 2 Wils. 6. R. v. Sh. of Middlesex, 2 Dowl. 116, or the defendant rendered. Meysey v. Carnell, 5 T. R. 534. R. v. Sh. of Middlesex, 4 Dowl. 673. R. v. Sh. of Lincolnshire, 4 Dowl. 455. Then, if the plaintiff have not lost a trial by the default of the defendant in not putting in and perfecting his bail, the proceedings upon the bail bond will be stayed upon payment of costs, the court also sometimes imposing other terms, such as taking short notice of trial or the like, if the application be made on behalf of the defendant, See Call v. Thelwell, 3 Dowl. 445, but not if made on behalf of the bail. Gale et al. v. Hayworth, 6 Dowl. 323. But if the plaintiff have lost a trial, the court also require that the bail bond shall stand as a security. Vide infra. Also, if more than one action be brought upon the bail bond, "proceedings may be stayed on payment of the costs in one action, unless sufficient reason be shewn for proceeding in more," R. G. H. 2 W. 4, s. 30, if the application be made within a reasonable time. Johnson v. Macdonald, 2 Dowl. 44.

By R. M. 59 G. 3, K. B. it is ordered that "no rule shall be drawn up for setting aside an attachment, regularly obtained against a sheriff, for not bringing in the body, or for staying proceedings regularly commenced on the assignment of any bail bond, unless the application for such rule shall, if made on the part of the original defendant, be grounded on an affidavit of merits, or if made on the part of the sheriff or bail, or any officer of the sheriff, be grounded on an affidavit, shewing 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 indemnity

only,* and without collusion with the original defendant.” There is a recent rule of the Exchequer, R. H. 7 W. 4, in exactly the same words. 5 Dowl. 446. See R. v. Sh. of Cheshire, 6 Dowl. 709. Where the words were own indemnity," instead of "indemnity only," the affidavit was holden bad; but the court gave leave to amend and re-swear it. Call ▼. Thelwell, 1 Cr. M. & R. 780. So, where it omitted to state at whose expense the application was made, it was holden insufficient. R. v. Sh. of Surrey, 3 Dowl. 174. But in an affidavit of merits, it is not necessary to state on whose behalf, or at whose expense, the motion is made. Bell v. Taylor, 1 Chit. 572. It must state, however, that the defendant has a good defence to the original action " upon the merits ;" where these latter words were omitted, the court held the affidavit insufficient. Grottick v. Bayley, 5 B. & A. 703. and see ante, p. 13. In the court of Common Pleas there is no rule upon the subject; but the same practice prevails there as in the Queen's Bench. See R. v. Sh. of London, 4 Bing. 427. In the Queen's Bench and Exchequer, the affidavit may be intituled either in the action on the bond or in the original cause; in the Common Pleas, it must be intituled in the action on the bond. See post tit. "Affidavit ;" and see the forms of the affidavit required in this case, in the Appendix. There is no objection to this affidavit being made by one of the bail, if the application be made on the behalf of him alone. R. v. Sh. of Middlesex, 3 Dowl. 186. and see Stride v. Hill, 1 Gale, 431.

Bail bond standing as a security.] Formerly, upon staying proceedings either upon an attachment against the sheriff for not bringing in the body, or upon the bail bond, the attachment or bail bond would be ordered to stand as a security, if the plaintiff had declared de bene esse, and had been prevented, for want of special bail being perfected in due time, from entering his cause for trial, in a town cause, in the term after that in which the writ was returnable, and in a country cause, at the ensuing assizes. But this rule of court seems to be abrogated, and the practice superseded, by stat. 1 & 2 Vict. c. 110; for now a plaintiff can no longer declare de bene esse,

In the copy of this rule, given in 2 B. & A. 240, the words are "their only indemnity," and in a former edition of this work, where 1 copied this rule from the Report, conceiving it to be correct, as the court of Queen's Bench had always used it, and decided according to it, I remarked that there was a difference between it and the rule in the Exchequer, the words in the one being "only indemnity," and in the other "indemnity only." It is not very clear, however, even now, that the copy of the rule in 2 B. & A. 240, is erroneous; the original rule is lost, and it is but a copy which is now in the Rule office; and whether the error be in this latter copy, or in the Report, is a matter of some doubt.