When attach that the application is made at their own expence, for their indemnity, and without collusion with the original Defendant. And though there is not a similar rule in this Court, nor has it been the practice to require such affidavit, yet it seems proper to make it (ƒ). 66 66 Where a trial has not been lost, the Court in staying ment to stand as proceedings will not in general order the attachment to a security. stand as a security: but, by a late rule (g) it is ordered, that upon staying proceedings either upon an Attachment against the Sheriff for not bringing in the body, or upon "the bail-bond, on perfecting bail (h), the attachment, or bail-bond, shall stand as a security, if the Plaintiff shall "have declared de bene esse, and shall have been prevent"ed for want of special bail being perfected in due time, " from entering (i) his cause for trial, at the assizes next "after the return (j) of the writ.” Under this rule it has been held that the Plaintiff must declare de bene esse to entitle himself to such security (k); and should make it appear, by affidavit, (shewing the dates of the different proceedings), that a trial has been lost (¿). In what cases the Sheriff will be relieved, and as to his remedy over when he is fixed, and setting aside the proceedings against him when irregular, see Tidd's prac. (9th edit.) 316-317. Arch. (by Chitty), 165-172. (f) In a late Case in the Exchequer, that Court, having no similar Rule, held that the affidavit thereby required, was not necessary. (Rourke, v. Bourne, 2 Dowl. P. C. 250, & 2 C. & M 338, S. C. nom. Bourne, v. Walker.) Such Court, however, previously held the contrary: see Dowson, v. Cull, 2 Cr. & J. 671; and has since adopted the Rule. Call, v. Thelwall, 3 Dowl. P. C. 443. And although there is no such Rule in C. P. W., yet that Court, it seems, acts upon it. Rex, v. The Sheriff of London, in Wilson, v. Goldstein & an., 4 Bing. 427. (g) Reg. Gen. (50) Mar. Ass. 2 W. 4, extended to proceedings under the Stat. 4 & 5 W. 4, c. 62, by Reg. Gen. (1) Mar. Ass. 5 W. 4. see (h) Rendering the defendant, is equivalent to perfecting Bail. Hodge, v. Hopkins. 1 Dowl. P. C. 431. Whitehead, v. Phillips, 2 B. & Ald. 585. Rex v. the Sheriff of Essex. 2 Dowl. P. C. 648 (i) See Rex v. The Sheriff of Middlesex, in Broadwood v. Ogle, 4 Dowl. P. C. 142. (j) Now "execution " (k) Rex v The Sheriff of Middlesex, 1 Dowl. P. C. 454. Baisley v. Newbold, 4 Id. 177. Gosling v. Dukes, Id. 178. Balmort v. Morris, 1 Cr. & M. 661. (1) Rex v The Sheriff of Surry, in Stone v. Wettenhall. 5. Taunt. 606. Phillips v. Whitehead, 1 Chitt. Rep. 270. 271, note. Rex v. The Sheriff of Middlesex, in Finlay v. Rallett, 3 Dowl. P. C. 194. BOOK 2. CHAP. V OF PROCEEDINGS ON THE BAIL-BOND. (a) Instead of proceeding against the Sheriff, in default of special bail, as mentioned in the last chapter, the Plaintiff has the option of proceeding on the bail-bond; and the latter course is usually followed, when the bail to the Sheriff is substantial. The provision of the statute 4, Anne, c. 16, as to assigning bail-bonds, is said to be confined to proceedings in the Courts at Westminster (b): but the 24th section of that act, seems to extend such provision to the Courts of the Counties palatine, and Wales. And the statute 22, Geo. II., c. 46, s. 35, after providing the monthly returns for the Capids and other mesne process of this Court, enacts that the Defendant shall appear and file special bail on the day of such return, or within eight days next after; and in case of neglect, the Sheriff, Undersheriff, or other Officer, shall, at the request and costs of the Plaintiff, his attorney, or agent, assign to the Plaintiff, the bail-bond taken for the Defendant's appearance upon the arrest by indorsement and attestation under his hand, in the presence of two or more credible witnesses: and the Plaintiff, after such assignment may bring an action upon such bond, in his own name; and this Court may, by rule or rules thereof, give such relief to the Plaintiffs and Defendants, in the original action, and to the bail, so sued upon the bail-bond, as is agreeable to justice and reason. The time for filing special bail having been altered by the statute 4 and 5, W. IV., c. 62, a corresponding alter (a) As to the form of the Bond, in what cases taken, for what amount, how taken, and when it must be executed, see Arch. Pr. (by Chitty) 142. (b) Evans' Pr. C. P. L. 32. Where the bailbond may be put in suit. When not. Assignment of the Bond, how procured. ation has necessarily been made in the condition of the bail-bond; and now, according to such condition, the bond may be put in suit, if special bail be not put in within eight days after execution of the Capias, inclusive of the day of such execution (c). The Plaintiff, however, is not at liberty to proceed on the bail-bond pending a rule to bring in the body (a); and the same causes which operate to prevent such proceeding being taken in the Courts at Westminster, avail in this Court (e). To procure an assignment of the bond, it should be got from the officer who made the arrest, and in whose possession it remains; and on taking it to the undersheriff, he will assign, and deliver it to the party. The assignment is attested by two witnesses, and is usually made by the managing clerk in the sheriff's office, who affixes the sheriff's name and seal of office (ƒ). The assignment need not now be stamped. If the action on the bail-bond be brought by the sheriff's Action on the assignee, it must be commenced in this Court, otherwise Bond, when to the parties could not have the relief intended by the statute be brought in this Court, and (g). Special circumstances, however, may justify bringing proceedings the action in another court; as for instance, where the therein. Defendants, or any of them, reside out of the jurisdiction (h). When the action is brought by the Sheriff, it may be prosecuted in another Court (i). The proceedings on the bail-bond must be commenced by writ of Summons, as the Defendants cannot be arrested. The Summons is made out, issued, and served, as in other cases; but need not be indorsed with the amount of debt and (c) See the form of the Capias, & the 3rd warning thereon. ante pa. 66. and see Hillary v. Rowles, 2 Dowl P. C. 201 5 B. & Ad. 460. S. C. Evans v. Mosely, 2 Dowl, P. C. 364. (d) Reg. Gen. (14) Mar. Ass. 2 W. 4. (e) See Tidd's pr. (9th Ed.) 297 & seq. Arch. (by Chitty) 161. & seq. (f) Doe dem. James v. Brawn, 5 B & Ald. 243. Middleton v. Sandford, 4 Camp. 36. (g) Morris v. Rees, 2 Bl. Rep. 838. 3 Wils. 348, S. C. and see ante pa. 107. (h) Chesterton v. Middlehurst, 1 Burr. 642. (i) Newman & an. v. Faucitt, 1 H. Bl. 631. This has lately been provided for by Rule in the Courts at Westminster. costs (j). If the Plaintiff unnecessarily issue more writs than one, he will be allowed the costs of one action only, (k). The declaration must commence and be intituled as below (1); and the form of it, as used in the Courts at Westminster (m), may, with a little variation, be adopted in this Court. The subsequent proceedings are the same as in ordinary cases. extent liable. The bail are liable to the full amount of debt (and not Sureties to what merely to the sum sworn to,) and costs, if not exceeding the penalty of the bond (n); as also to the costs of the action against them. The proceedings on the bail bond, like those against the Staying proSheriff, may be stayed when regular (o), either by the ceedings. Defendant, or his bail below, upon perfecting special bail, and payment of costs; and on such other terms as are "agreeable to justice and reason" (p). We have seen (9) that though there is no express rule of this Court, which renders it necessary on applying to stay such proceedings, for the Defendant to swear to merits, or his bail (if they apply), to swear that the application is made by them, at their own expence, for their indemnity, and without collusion with the original Defendant, yet it is advisable to make such affidavit. (Rowland v. Dakeyne, 2 Dowl. P. C. 832. Smart v. Lovick, 3 Id. 34. (k) See post pa. 111. (1) Form prescribed by Reg. Gen. (24) of Mar. Ass. 5 W. 4,, and In the Common Pleas at Lancaster. The day of in the year of our Lord (Venue)* A. B. (the Plaintiff in this suit) Assignee of C. D., Esquire, Sheriff of the said County, according to the form of the statute in such case made and provided, by E. F., his attorney, complains of G. H., J. K., and L. M., (the Defendants in this suit) who have been summoned to answer the said A. B., as assignee as aforesaid, by virtue of a writ issued on the day of in the year of our Lord in an action of debt, &c. * See the mode of stating the avenue, post pa. 117. (m) See form of declaration, Tidd's Pr. (1833) pa. 291; and Chitty's forms, to Arch. Pr. pa. 59. (n) Stevenson v. Cameron, 8 T. R. 28. Mitchell & others v. Gibbons, 1 H. B. 76. (0) As to setting aside the proceedings for irregularity, and for other causes, see Tidd's Pr. (9th Ed.) 300, & Arch. (by Chitty), 165 & seq. (p) See ante pa. 107. (4) See ante pa. 105-6. Staying proceedings. On filing Special Bail. On perfecting On surrender ant. When special bail is filed after proceedings are taken on the bond, and it is not intended to render the Defendant, there should be given with the notice of bail, four days (exclusive) notice of perfecting the same (r); and when bail above is put in, with "such notice given to perfect the 66 same, after an assignment of the bail-bond, or an attach"ment against the Sheriff, the proceedings upon the bail"bond, or (in case there has been a bail bond) against "the Sheriff, shall be suspended from the time of giving "notice of the bail above being put in, until the time for "perfecting such bail, according to such notice, shall have "expired and in case such bail above shall be perfected, "within such time, the proceedings upon the bail-bond, "or against the Sheriff, shall be further suspended for the space of one week ” (r). Upon special bail being filed, with the usual affidavit of justification annexed, the Prothonotary is anthorized (s) to grant a rule to shew cause why the proceedings upon the assignment of the bail-bond, should not be stayed upon payment of costs; which rule will operate as a stay of the Plaintiff's proceedings, from the time of service, until otherwise ordered; and in case the rule should not be made absolute, the Defendant must undertake not to bring a writ of Error for delay; and the Plaintiff is to be in the same situation, with respect to any rules, notices, or pleadings, and may take such steps, as of the day on which such rule was obtained, unless otherwise ordered (s). The practice, however, is, not to take out a rule nisi to stay proceedings, until special bail is perfected; in which case the rule is drawn up accordingly, and operates as a stay of proceedings from the service. The proceedings may also be stayed on the Defendant's ing the Defend- being surrendered; and it is provided by a late rule (t), the Prothonotary of this Court, or his deputy, "have power to issue a rule nisi to stay proceedings, upon "the assignment of a bail-bond, the Defendant having that Reg. Gen. Mar. Ass, 57 Geo. 3. |