to his belief, by the laws of Holland, he had a right to maintain an action in his own name. He had arrested the defendant. The Court refused to set aside the bail-bond. Schuerhop v. Schmanuel, 4 D. & R. 180.

A defendant may be held to bail on an affidavit, stating that the plaintiff had furnished goods to the amount of 2000l. to J S, for whom the defendant had undertaken to be responsible; that JS bad failed, and paid a dividend of four shillings in the pound, and that 1600/. remained due from the defendant to the plaintiffs; although it was insisted that the damages were unliquidated, and that the defendant was only liable collaterally. Collins v. . Wallis, 4 Law J. C.P. 88.

An affidavit to hold to bail, stating that the defendant was indebted to the plaintiff in 2,0631., secured to the latter by an indenture made between him and the defendant, by which he covenanted to pay the plaintiff 501. and the costs of executing the indenture, and the further sum of 2000l., at certain times and on certain events, which have now passed, and that such sums have not as yet been paid, is sufficiently explicit and certain. Burnard v. Neville, 3 Law J. C.P. 197, s. c. 3 Bing. 126, s. c. 10 B. Mo. 475.

An affidavit of debt by the assignee of a bankrupt, that the defendant was indebted to him for goods sold by the plaintiff to the defendant, as appeared by the books of the latter, and as the assignee believed, is sufficient. Sullivan v. Bristow, 4 Law J. C.P. 190.

An affidavit to hold to bail was made before the British Consul at Cadiz, in which the plaintiff swore that the defendant was indebted to him in the sum of 100,000l. sterling.

The Court held, that the word sterling rendered the affidavit uncertain, and discharged the defendant on filing common bail. Macquire v. Machardo, 4 Law J. K.B. 42, s. c. 4 B. & C. 886, s. c. 7 D. & R. 478, as Pickardo v. Machado.

It is not a variance to declare simply on the money counts, where the affidavit of debt states that the plaintiff accepted a bill of exchange for the honour of the defendant, and that he was obliged to pay it himself. Brooks v. Clarke, 1 Law J. K.B. 29, s. c. 2 D. & R. 148.

In an affidavit to hold to bail, it will be a sufficient statement of the cause of action, that it is for use and occupation of premises of the creditor. If the statement proceeds to say "as tenant thereof," it is no objection to it, that it do not add "to the creditor."

It is no objection to an affidavit to hold to bail, made by a third person, that such person swears positively the debtor has not made any tender in bank-notes to the creditor, although the creditor is residing in England. Lee v. Sellwood, 9 Price, 322.

An affidavit to hold to bail, which states "that G MG is justly and truly indebted unto L S of L, in the sum of 499l. 10s., upon and by virtue of a certain charter-party of affreightment, bearing date &c., for and on account of the hire of a certain ship or vessel called the S, let to hire by the gaid LS to the said G M'G, and by him taken for a certain voyage from the port of L to P," held sufficient. Skeen v. M'Gregor, 1 Law J. C.P. 77, s. c. 1 Bing. 242, s. c. 8 B. Mo. 107.

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Affidavit to hold to bail on the ground that defendant was indebted to plaintiff in trust for defendant, under a deed by which the defendant had covenanted to pay "at certain times and on certain events now passed and happened:" Held sufficient. Barnard v. Neville, 3 Bing. 126.

Stating in an affidavit of debt, that the defendant is indebted to the plaintiff for principal and interest on a promissory note, without stating the purport of the note, is bad. Jackson's bail, 1 Law J. K.B. 16.

It is irregular, in an affidavit to hold to bail, to say that a bill of exchange purports to be indorsed by a party. Lovie v. Longster, 3 Law J. K.B. 55.

Where an affidavit of debt, setting out a bill of exchange, gave dates by mistake, which shewed that the bill was not actually due, the Court would not assist the plaintiff, and ordered the defendant to be discharged out of custody. Jadis v. Williams, 5 Law J. K.B. 135.

An affidavit of debt, stating that the defendant was indebted to the plaintiff on a promissory note, payable to the order of I, E, & Co. and duly indorsed to the plaintiff, is insufficient as against I, as it should have stated that the note was indorsed to the plaintiff by I, E, & Co., or by I alone, under the name of I, E, & Co. M'Taggart v. Ellice, 5 Law J. C.P. 123, s. c. 4 Bing. 114.

An affidavit of debt made for the purpose of holding a party to bail, on a promissory note: Held insufficient, in not stating that the note was due and unpaid, or that the holder was payee or indorsee. Bill v. Rogers, 12 Price, 194.

Where a defendant has undertaken to pay for goods sold to a third person, in the event of the latter not paying for them, he may be holden to bail on the common affidavit for goods sold. Cope v. Joseph, 9 Price, 155.

A defendant cannot be holden to special bail on an affidavit, stating him to be indebted to the plaintiff in a certain sum, for goods sold, unless it be also stated that they were delivered. Lascar v. Morioseph, 2 Law J. C.P. 14, s. c. 1 Bing. 357, s. c. as Loisada v. Morjoseph, 8 B. Mo. 366.

Where process is at the suit of the husband and wife, an affidavit that the defendant is indebted to the plaintiff for money had and received to the use of his wife, is insufficient. Wade v. Wade, 5 Law J. C.P. 49, s. c. 4 Bing. 50.

The affidavit to hold to bail for "money paid, laid out, and expended," need not state a request. Jones v. Evans, 1 Law J. K.B. 107.

An affidavit to hold to bail for money paid for a defendant, and advanced to him, need not contain an averment that the money was paid and advanced at the defendant's request. Berry v. Fernandes, 2 Law J. C.P. 1, s. c. 1 Bing. 338.

The affidavit to hold to bail for a sum of money, "upon account stated," should set forth a request. Anon. 1 Law J. K.B. 86.

So should an affidavit for "money had and received," state a request. Carmichael v. Davies, 1 Law J. K.B. 85.

An affidavit of debt, in which the plaintiff swore that the defendant was indebted to him in a certain sum, for goods sold and delivered by the plaintiff to the defendant, without adding "at his request," is sufficient, as such a request must be inferred. • Rowley v. Bayley, 4 Law J. C.P. 155.

A defendant cannot be held to special bail on an affidavit, stating him to be indebted to the plaintiff in respect of a certain sale of land in the possession of the defendant. Sykes v. Ross, 2 Y. & J. 2.

An affidavit to hold to special bail, stating that the defendant was indebted to the plaintiff by virtue of certain articles of agreement, by which the latter agreed to sell, and the former agreed to purchase, certain lands, and that the defendant had been let into possession in pursuance of the agreement, is insufficient, without stating that a conveyance had been tendered to the defendant. Young v. Dowlman, 2 Y. & J. 31.

Where an arbitrator directs one of the parties to a reference to pay a sum of money" on demand," the affidavit to hold to bail, must state that a demand was made. Driver v. Hood, 6 Law J. K.B. 61, s. c. 7 B. & C. 494, s. c. 1 M. & R. 324.

Where the deponent is an illiterate person, or marksman, it should be stated in the jurat that it was read over to him in the presence of the commissioners. Anon. 1 Law J. K.B. 50.

An affidavit of debt by a Frenchwoman, contained in the jurat a certificate of the deputy signer of bills of Middlesex, that it was interpreted to the deponent by J C, professor of languages, (who had first sworn that he understood French and English,) and that the deponent afterwards swore to the truth of the affidavit, was held sufficient. Bosc v. Solliers, 3 Law J. K.B. 248, s. c. 4 B. & C. 358, s. c. 6 D. & R. 514.

The words "justly and truly," before the word "indebted," are not material. In the jurat, "sworn at the King's Bench Office, Temple," is a sufficient description of place. The Court will not, upon motion, try the question as to the right to arrest, though it be stated, and not denied, that the plaintiff has executed to the defendant a letter of licence. West v. Champneys, 4 Law J. K.B. 58.

An affidavit purporting to have been sworn "at the King's Bench Office, Inner Temple, London, before Thomas Chambre," was held sufficient, although not entitled in any court, as the Court conceived themselves bound to notice that Thomas Chambre was an officer of the Court, attending at the King's Bench Office, and authorized to take affidavits. Howell v. Wilkinson, 7 B. & C. 783.

An affidavit entitled "in the common place," held sufficient. Rolfe v. Brooke, 4 Bing. 101.

An affidavit of debt, sworn before a commissioner in the country, without stating him to be a commissioner, in the jurat, is insufficient, although entitled in this Court; and the Court will not allow a supplemental affidavit, to aid the defect, to be filed. Howard v. Brown, 6 Law J. C.P. 9, s. c. 4 Bing. 303, s. c. 1 M. & P. 22.

Where a plaintiff, in the affidavit of debt, was described as Charles Edmund, and in the writ and declaration, as Charles only, the Court held, that application should have been made in the first instance, to set aside the writ, it not being in conformity with the affidavit; as, however, bail had been given in the cause, they ordered an exoneretur to be entered on the bail-piece. Grindall v. Smith, 6 Law J. C.P. 10, s. c. 1 M. & P. 24.

(b) OF SUPPLEMENTAL AND COUNTER AFFIDAVITS. Where process was sued out by husband and wife,

but the affidavit of debt was made by the husband alone, for money received by the defendant for the use of the wife, the Court directed the bail-bond to be cancelled, and refused to allow a supplemental affidavit. Wade v. Wade, 5 Law J. C.P. 49, s. c. (not s. P.) 4 Bing. 50.

An affidavit made and tendered by the defendant in support of a motion for his discharge on the ground of the insufficiency of the affidavit of debt stating that nothing was, in fact, due from him to the plaintiff, altogether rejected as inadmissible. Bill v. Rogers, 12 Price, 194.

2. BAIL TO THE SHERIFF.

[See ARREST, and BARON AND FEME.] Semble-If the bail do not appear to justify on the day specified in the notice, but on a subsequent day, in compliance with a further notice, and the plaintiff on the last day takes an assignment of the bail-bond, and proceeds to judgment and issues execution; the proceedings are not premature, although the rule for the allowance of bail be served on the same day; nor is the assignment waived by the plaintiff attending to oppose the justification of the bail. Edmond v. Ross, 9 Price, 5.

Where a defendant was arrested, and executed a bail-bond by the initials of his christian name onlythe Court ordered the bail-bond to be delivered up to be cancelled, but without costs. Parker v. Bent, 1 Law J. K.B. 14, s. c. 2 D. & R. 73.

The defendant applied to the under-sheriff before the return of the writ, to surrender himself in discharge of his bail, which he refused to accept, without assigning any reason for so doing, and the following day he surrendered himself to the keeper of the county gaol, which was also before the return of the writ; and the bail-bond was afterwards assigned to the plaintiff: The Court ordered the proceedings to be stayed, but without costs. Lewis v. Davis, 5 B. Mo. 267.

It is an answer to an application for setting aside a writ, that the bail-bond should be delivered up to be cancelled on the ground of misnomer, to shew that the defendant is as well known by one name as the other. Curberry v. Beeston, 1 Law J. C.P. 66.

The Court will not stay proceedings on the bailbond, on an affidavit of merits, until bail have been justified. Mellish v. Mason, 2 Law J. K.B. 76.

Where the defendant has become a bankrupt, and bail above has been perfected, the Court will not order the bail-bond given to the sheriff to be cancelled, but will leave the party to make a defence to any action that may be brought upon it. Collins v. Hopwood, 2 Law J. K.B. 24.

A man was arrested on a special original writ. He gave bail to the sheriff. On the third day after the quarto die post of the return, a commission of bankrupt was taken out against one of the bail. He obtained his certificate. An action was brought on the bail-bond: the Court held, that the bail had only until the quarto die post of the return to justify; and therefore, that the recognizance was forfeited before the commission issued; and consequently, that the debt was proveable under it, and no action could be maintained by the assignee of the bail-bond.

Goulson v. Hammon, 2 Law J. K.B. 114, s. c. 2 B. & C. 626, s. c. 4 D. & R. 160.

If bail have justified improperly, the Court will not interfere after the plaintiff has taken an assignment of the bail-bond, and the bail have pleaded that the defendant in the original action did appear in performance of the condition of the bond. Brooker v. King, 2 Law J. K.B. 24.

If a bond be given, that the defendant shall put in and perfect bail above, and, instead thereof, he render himself to prison, the Court will set aside all the proceedings taken on the first bond. Warren's bail, 2 Law J. K.B. 25.

A party, on being arrested on an attorney's bill, having entered into a bail-bond, is not entitled to have it cancelled under the 51 Geo. 3. c. 124, though the bill, by taxation, be reduced under 151. Thwaites v. Piper, 4 D. & R. 194.

Where the defendant has become a bankrupt, and the bail have not applied to the Court for relief, so soon by a twelvemonth as they might have done, the Court will not stay the proceedings, even upon payment of costs. Swayne v. Bland, 2 Law J. K.B. 172, s. c. 4 D. & R. 373.

To enable bail to the sheriff to move to set aside proceedings on the bail-bond, it is not necessary that they should previously have entered an appearance to the action. Alingham v. Twigg, 1 Law J. C.P. 99.

The cancellation of a bail-bond, given by a debtor, who had been arrested at the suit of a creditor, on whose petition a commission of bankrupt had been sued out against the defendant, pending a petition presented to the Chancellor, praying to be discharged from the arrest,-was refused: the Court, however, gave the defendant two days' time, after the petition should be heard, to give notice of bail. Wise v. Prowse, 9 Price, 391.

To support a motion to stay proceedings on a bailbond, the production of an affidavit is necessary, stating that the application is really and truly made, on behalf or in ease of the sheriff, or of the bail, and at their own expense, without collusion with, or indemnity from, the defendant. Standen v. Blakie, 13 Price, 114, s. c. M'Clel. 44.

A party having omitted to give notice of bail on the 29th of January, which was the last day for putting in bail, an assignment of the bail-bond was taken on the 30th, and the plaintiff proceeded against the bail on the bond, and served process on the defendant and his bail, to which they appeared, and pleaded comperuit ad diem. On motion, the Court made a rule absolute, which had been obtained by the plaintiff, calling on the defendant in the original action to shew cause why his appearance thereto should not be recorded as of the day when notice of bail being put in was served on the plaintiff's clerk in court, notwithstanding bail had been regularly put in, and notice had been given on the 30th, before the assignment of the bail-bond could have been executed in point of fact. Allday v. George, 9 Price, 406.

The taking of one surety to a bail-bond deprives the sheriff of his claim to indulgence to have an attachment set aside for not bringing in the body, even on the payment of costs. The losing of a trial in term is the loss of a term. Rex v. the Sheriff of London, 2 Law J. C.P. 259.

If there be two writs out against a party for the same cause of action, one into the county of Middlesex, and the other into the city of London, and the person upon being arrested in Middlesex give a bailbond, and afterwards upon being arrested in the city of London give another bail-bond, the Court will not relieve him from the latter bail-bond. Isaac v. Levien, 3 Law J. K.B. 56.

Where the defendant has been misnamed in the writ, and has given a bail-bond, the Court will not set aside the proceedings, but leave him to plead his misnomer in abatement. Homan v. Tidmarsh, 4 Law J. C.P. 97.

The defendant was arrested by the name of Stephen T. Silk, and having executed a bail-bond in the name of Stephen Thomas Silk, the Court ordered the bond to be cancelled. Lake v. Silk, 4 Law J. C.P. 67, s. c. 3 Bing. 296.

Where a person is arrested in Wales, upon process issuing out of the courts at Westminster, the bail-bond must be taken in the single sum sworn to in the affidavit to hold to bail. Joy v. Kenrick, 4 Law J. K.B. 44.

Where a plaintiff had proceeded on an assignment of a bail-bond taken after the render of the defendant, who had put in bail, whom he had insufficiently described, so that time was necessarily given for furnishing a better description, during which interval such further description was not given, nor was any attempt afterwards made to justify,-the Court of Exchequer set aside the proceedings on the assignment of the bond, without an affidavit that the application was made bond fide, which is not required by the practice of that Court. Richardson v. Hodgson, 11 Price, 633.

Where an arbitrator has directed, that one of the parties to a reference shall pay a sum of money to the other" on demand," and that party is arrested for such sum, and held to bail upon an affidavit which does not state any demand made, the Court will order the bail-bond to be given up to be cancelled. Driver v. Hood, 6 Law J. K.B. 61, s. c. 7 B. & C. 494, s. c. 1 M. & R. 324.

The Court will not stay proceedings upon a bailbond, 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. Hobbs v. Miller, 1 Y. & J. 403.

Where an attorney has become bail to the sheriff, and the bail-bond has been assigned, the Court will, upon the usual affidavit, stay proceedings upon the bail-bond, upon payment of costs. Mann v. Nottage, 1 Y. & J. 367.

The execution of a bail-bond before warrant by the sheriff, and the subsequent alteration of its date, so as to correspond with the date of the warrant, (although that alteration be unauthorized by the bail,) will not vitiate the bond or discharge the bail.

If two or more of several defendants plead non est factum as to themselves only, the other defendants suffering judgment by default, the plaintiff need only prove the execution of the instrument as to the parties who have so pleaded. Fenner v. Bransby,. 5 Law J. K.B. 179.

In an action on a bail-bond at the suit of the assignee of the sheriff, a plea that the assignment of the bail-bond was not stamped before the exhibiting of the plaintiff's bill in the cause, is demurrable,

A widow, after her husband's decease, continued to use the initials of her husband's christian name, and accepted a bill of exchange with them; but being arrested under those initials, the Court set the bail-bond aside on her entering a common appearance. M'Beath v. Chatterley, 1 Law J. K.B. 56, s. c. 2 D. & R. 237.

The defendant having been held to bail, as the indorser of a bill of exchange, at the suit of the indorsee, the Court refused to allow the former to be discharged, on entering a common appearance on an affidavit, stating that the bill was founded and given on an usurious transaction. Isaacs v. Silver, 4 Law J. C.P. 144.

Where a defendant was arrested by the name of William Butcher, his real name being Thomas Butcher, he was discharged on common bail, it appearing that the plaintiff knew the real name. Anon. 3 Law J. K.B. 128.

Where a capias ad respondendum was issued against the defendant into Middlesex, on an affidavit of debt filed in the Filazer's Office for that county; and the defendant being resident in Yorkshire, a second capias was issued into that county, founded on an office copy of the original affidavit of debt, and under which the defendant was arrested: Held, that he was entitled to be discharged on entering a common appearance, as a new affidavit of debt should have been filed with the Filazer for Yorkshire. Dorville v. Whoomwell, 3 Law J. C.P. 142, s. c. 3 Bing. 39.

Where the defendant was arrested, and executed a bail-bond by the initials of his christian name only, as the acceptor of a bill of exchange, in which his initials only appeared: the Court of King's Bench ordered the bail-bond to be delivered up to be cancelled, but without costs. Parker v. Bent, 1 Law J. K.B. 14, s. c. 2 D. & R. 73.

And where the defendant was arrested by the initials of his christian name, and executed a bailbond in a similar manner, the Court ordered the bail-bond to be delivered up to be cancelled, and a common appearance entered. Fahrbrodh v. Solliers, 10 B. Mo. 322.

For the like reason, a defendant discharged on entering a common appearance, and undertaking to bring no action. Taylor v. Rietherman, 5 B. Mo. 264.

But it seems that if a party, having signed a bill of exchange, or other instrument, by the mere initials of his christian name, refuse to give his full name, on being required so to do, and he is afterwards arrested by such initials only, he will not be entitled to costs, or discharged on entering a common appearance. Fahrbrodh v. Solliers, 3 Law J. C.P. 143.

If it be manifestly clear that a party ought not to have been arrested, he will be discharged on common bail. M'Ginnis v. M'Curling, 6 D. & R. 24.

In the Court of King's Bench, a defendant has eight days from the quarto die post of the return of a special capias, to enter an appearance. Hunter v. Simpson, 2 Law J. K.B. 210, s. c. 3 B. & C. 110, B. c. 4 D. & R. 713.

A variance between the affidavit of debt and the cause of action, is no ground for discharging the defendant out of custody, on entering a common appearance, before the declaration is filed. Naylor v. Eager, 2 Y. & J. 90.

DIGEST, 1822-1828.

4. BAIL ABOVE.

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(A) PAYMENT OF MONEY INTO COURT, IN LIEU of.

By statute 7 & 8 Geo. 4. c. 71, the defendant, instead of perfecting and putting in special bail, may deposit and pay into court the sum indorsed upon the writ, together with an additional sum, as a security for costs, to abide the event of the suit; or, having deposited money with the sheriff under 43 Geo. 3. c. 46, may allow the same to remain in court, together with the additional sum of 10l. to be paid into court as a further security for costs, to abide the event of the suit. If the plaintiff obtain judgment, he is entitled, on motion, to receive the money out of court, or if judgment be given for the defendant, it shall be repaid to him. And it is further provided by the said statute, that the defendant after making such deposit, may receive the money out of court upon perfecting special bail, or, after perfecting special bail, may make such deposit and payment and file common bail. [See 5 Law J. Stat. 123.]

Where a defendant pays money into court in lieu of bail, under the 7th and 8th Geo. 4. c. 71, the plaintiff, on obtaining judgment, is entitled to be satisfied out of that money, although the defendant has subsequently taken the benefit of the Insolvent Act in respect of the plaintiff's debt.

And semble, that the same rule would be applicable in case the defendant became a bankrupt.

The plaintiff's right is not affected by the circumstances of bis obtaining his judgment by warrant of attorney or cognovit; the provision of the Insolvent Act 7 Geo. 4. c. 57. s. 34, and that of the Bankrupt Act, 6 Geo. 4. c. 16. s. 108, being applicable only to cases where the plaintiff proceeds by execution against the goods. Cooper v. Welch, 6 Law J. K.B. 237.

Where separate actions had been brought against two parties to a bill, and one of them had paid the amount into the hands of the Prothonotary, in purance of the 7 & 8 Geo. 4. c. 71, together with 201. for costs, the Court allowed the defendant in the second action, to pay into court a sum for the costs in lieu of special bail. Crace v. Hutchins, 6 Law J. C.P. 121.

(B) WHO MAY BE BAIL.

Bail will not be rejected, where the attorney has not promised to indemnify him, although he expects that the attorney will see that he comes to no harm. Thorp's bail, 1 Law J. K.B. 14.

Bail at the request of the defendant's attorney admissible, if not indemnified by him. Hunt v. Blaquiere, 4 Bing. 588.

A person by occupying part of a warehouse is a housekeeper, although he does not pay any taxes. Stapleton's bail, 1 Law J. K.B. 13.

A person who lets out lodgings, though not resident in the house, is a housekeeper, and eligible as bail. Cohen v. Waterhouse, 8 B. Mo. 365.

A person, though only a lodger, if he pays his share of rent and taxes of partnership premises, is eligible as bail. Savage v. Hall, 1 Bing. 430, s. c. 8 B. Mo. 525.

A person who lives in rooms over a stable, and pays a sum of money for them, in which the taxes are included, is a householder. Montgomery's bail, 2 Law J. K.B. 76.

I