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After death of delendant.

sheritl.

are afterwards put in ; but that the plaintiff may take an assignment of the bail bond, and proceed thereon, unless the bail be also justified, though not before excepted to." But a different practice prevails here, and the bail, if not excepted to, need not justify except in case of a defendant in custody. 12

An assignment, after the death of the defendant, is nugatory,

and proceedings on the bail bond will be stayed.13 After ruling

The plaintiff cannot insist upon an assignment after he has ruled the sheriff to bring in the body,"4 or at least, after suing out an attachment, for by doing so he has made his election to proceed against the sheriff.15 But the plaintiff in such case may take an assignment of the bond, if the sheriff choose to assign it; and where the sheriff's officer, on the attachment being lodged, prevailed on the plaintiffs to withdraw it, and take an assign.nent of the bail bond, which the plaintiffs, in order to relieve the sheriff, accordingly took, and commenced an action thereon; the court of king's bench held, that the plaintiffs might abandon their attachment in this case,

and then take an assignment and proceed on the bail bond. 16 Where at

And where the attachinent against the sheriff has been set aside aside for ir- for irregularity, it seems it is no bar to an assignment of the regularity.

bail bond.17

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tachment set

If bail below become bail above, and the plaintiff excepts, he cannot afterwards take an assignment of the bail bond and put it in suit ; because by the first act he denies the sufficiency of the bail, and by the second admits it : but his course is to rule the sheriff.18 The court suggest that if in such case the plaintiff wishes to proceed on the bail bond, he should move the court for leave to withdraw his exception. 19

Where bail
below, be-
come bail
above.

11 7 East. 607.
12 1 Dunlp. Pract. 186.
13 Andr. 374.
14 2 Saund. 60. b. 1 Bing. 181.

15 1 Chit. Rep. 394. note. Tidd.
Pract. 319. 1 Arch. Pract. 94.

16 15 East. 215.

17 Wightw. 406. 15 East's Rep. 215.

18 5 Cowen. Rep. 287.

19 But quere; if the time for justification had elapsed, would the

not resort to

Action on the bail bond.] Special bail having been put in, the plaintiff cannot proceed on the bail bond, unless after exception they neglect to justify ; otherwise, his proceedings are irregular, and will be set aside on motion.20 Nor can be Plaintiff canresort to the bail bond, aster proceeding in the original suit ;21 bond after and when he elects to proceed upon the bail bond to judgment, the origiand charges the bail to the arrest and his principal in execution, he cannot be permitted afterwards, to waive these proceedings by filing common bail in the original suit, and proceeding to judgment therein; the remedies are inconsistent, and he is concluded by his election.22

The action may be brought in any county in which the as- Where acsignment is stated to be made; as if the bail bond be given to brougtit. the sheriff of S., the assignment may be stated to be made in the county of B., or any other county, and the venue laid there.23 The action is usually brought as well against the principal as the bail. It can in general only be commenced In what in the same court as the original suit;24 and this rule applies to actions brought by the sheriff himself, as well as by his assignee.25 But when a bail bond is taken in a court of common

tion may be

court.

court grant such motion without 20 1 Johns. Cases, 249. S. C.
the consent of the bail? For they Coleman. 99. 8 Johns. Rep. 358.
have held that if bail do not justify 21 1 Caines' Rep. 56. 4 Johns.
within the time required by the Rep. 185. Barnes, 92.
rules of the court, they cease to be 22 7 Johns. Rep. 119. and see 4
bail, 1 Cowen. Rep. 56. ante, Vol. Taunt. 715.
1. p. 410. and may move to have 23 2 Saund. 61. a. Str. 727. S.C.
an exoneretur entered on the bail Ld. Raym. 1455.
piece. 2 Cowen. Rep. 514. 619. 24 13 Johns. Rep. 424. Barnes,
And if the application were grant. 92. 117. Burr. Rep. 642. 1923. 3
ed before the time for justification Wils. 348. 8 Term Rep. 152. 2
had elapsed, how could the bail Camp. 396.
bond be put in suit ? For there be- 8 Term Rep. 152. Tidd. 323.
ing no exception, a neglect to jus. It seems it is otherwise in Eng-
tify would not be a breach of the land in the common plcas. 2
condition of the bond.

Smith. Rep. 489. S. C. 4 Taunt.

pleas, in this state, and either the baile or the principal reside out of the county, an action may be brought in this court; for otherwise the party would be without remedy: and in such case, the bail pay only such costs as would be taxed in the court of common pleas, if the action had been brought in that court, and are entitled to be relieved in the same manner.28

The defendant cannot object under the plea of non est factum, that the suit was commenced in the wrong court, 29 but should move to set aside the proceedings.

Assessment of damages and liability of bail.] After judgment has been obtained on the bail bond, the plaintiff must have his damages in the original action ascertained. It is provided by statute, that "if a bond taken on the arrest of a defendant, in those actions in which an assessment of damages might be made by the clerk, shall have been prosecuted by the plaintiff in such action, and judgment rendered thereon, the court shall in like manner,” that is, in the manner previously directed in the same article, in cases of assessment of damages on default,so “ direct the clerk to examine, ascertain, and report what sum the plaintiff ought to recover for the damages upon his original cause of action. The same proceedings in all respects shall be had in ascertaining such damages, as are herein provided, in case interlocutory judgment had been rendered in such original action.' And, “when a bond taken on the arrest of a defendant in other causes than those provided for in the two last sections, shall have been assigned to the plaintiff, and judgment shall be rendered thereon in his

When by clerk.

"31

And when on writ of inquiry.

715. 1 Chit. 394. Tidd. Pract. Rep. 459. 9 Johns. Rep. 80. 7 323.

Johns. Rep. 318. 26 9 Johns. Rep. 80. Burr. Rep. 29 2 Camp. 396. 642. and see 7 Johns. Rep. 318. 30 Ante, Vol. 1. p. 629. to 632. 27 12 Johns. Rep. 459.

31 R. St. P. 3. Ch. 6. T.3. s. 10. 28 13 Johns. Rep. 424. 12 Johns. 11. Vol. 2. p. 358.

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must first be

bond.

favour, a writ of inquiry of damages shall issue in the original action in the same manner as if the defendant had appeared therein, and interlocutory judgment had been obtained against him." The damages cannot in any case be assessed until a Declaration declaration in the original action shall have been filed.93 And filed. lastly, it is provided, that “the damages so assessed, either by the clerk or upon a writ of inquiry, with the interest, the costs What in the original suit, and in the suit on such bond, shall be en- be collected dorsed upon the execution issued upon such judgment, as the amount to be collected, with sheriff's fees; and no more shall be collected on such execution."34

The liability of the bail, as here fixed, is the same as it was before by the common law. In an action of debt on bond, Debt on conditioned for the payment of money, the bail are only responsible for the principal and interest due on the bond; on the payment of this, with the costs of both suits, they will be discharged, 35 and the equitable jurisdiction of the courts of law over the bail bond suit, cannot in any case be attended to other matters dehors the original suit. 36 Where the original suit had been compromised, and the costs were to be paid by the defendant, who neglected to pay them, and the plaintiff's attorney thereupon proceeded in the bail bond suit; the court refused to set aside the proceedings, as the plaintiff had no other way to obtain his costs.

If the plaintiff die after the arrest and before the return of the writ, the court will set aside the proceedings on the bail bond ;$and after the death of the principal, the bail will be relieved in the same manner as if he were still alive.39 Where special bail surrender their principal after the assignment of the bail bond, without justifying, and after the expiration of the

37

32 Ib. s. 12. 33 Ib. s. 13. 34 lb. 8. 14.

2 Johns. Cases, 340. 36 Ib. 341, 342. VOL. II.

37 2 Johns. Cases, 105. S. C. Coleman, 115.

38 2 Saund. 61. b. 8 Mod. Rep. 240.

39 1 Johns. Rep. 515. 3

35

time allowed them to justify, the court will stay the proceedings on payment of costs. 40

Surrender by As to the surrender of their principal by the bail below, (as sheriff's bail.

the proceedings are with slight modifications the same,) we will speak of it when we come to treat of the surrender by special bail.

Setting aside proceedings for irregularity.) If any of the proceedings on the bail bond are irregular, they will be set aside on motion. 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, &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. 41

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; but they would not order the bail bond to be delivered up to be cancelled.42 It seems doubtful whether or not the court would order the bail bond to be delivered up to be cancelled, on the ground of a misnomer.* It has been held, that if a 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, though the proceedings on the other writ will be set aside.44

40 5 Term Rep. 401. 534.7 & Pul. 109. 4 Maule & Selw. 361. Term Rep. 297. 2 Saund. 61.c. 1 Chit. Rep. 282. Barnes, 74. Str. 41 Tidd. Pract. 323.

399. 3 T. Rep. 572. 43 1 Chit. Rep. 174.

44 2 Taunt. 67. 43 3 Durn. & East. 572. 2 Bos.

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