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If proceed-
ings on Bond
irregular
may be set
aside.

Entitling

Affidavits.

been obtained thereon they may be arrested on the judgment (v).

If the proceedings on the bail bond have been irregular, or if the affidavit to hold to bail insufficient, application may be made to the court to set aside the same, and if the application is considered a proper one the proceedings will often be set aside with costs; but the application should be prompt, and it has been held that where the affidavit was insufficient the application to set aside the bond should be made, before the time for putting in special bail expires (w). It is usual when the irregularity relied on is in the proceedings in the original cause, for the affidavit of the facts and the motion to be entitled in the original cause; but if the irregularity be in the proceedings in the action on the bail bond, then for the affidavits and motion to be entitled and made in that cause: it would seem, however, by a case in this court that they be entitled in either cause (a). And though the proceedings may be regular they will sometimes be stayed on terms (y), after the defendant has perfected special If a trial has been lost

may

If a trial lost bail, and on payment of costs.

Bond will be ordered to

stand as

security.

in consequence of the delay in perfecting bail the court will generally order the bail bond to stand as a security for debt and costs (z), even though the bail have rendered their principal (a): but not if a trial has been lost by the plaintiff's delay (b). By the rule of court, in all cases where the bail bond is ordered to stand as a security, liberty is given to the plaintiff to sign judgment upon

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ment thereon

it (c). When an action has been commenced upon the And judg bond this may easily be done, but unless such action has may be been commenced it is difficult to conceive how it can be done.

signed.

ordered to

security.

staying pro

should be

If the plaintiff has declared de bene esse in a town if Bail not perfected cause, and has been prevented for want of special bail in time. being perfected in due time, from entering his cause for trial, in the term next after that in which the writ is returnable, or in a country cause, for the ensuing assizes, the court will, on staying proceedings, either upon an attachment against the sheriff for not bringing in the body, or upon the bail bond on perfecting special bail, order the bail bond to stand as a security (d). The de- Bond will be fendant cannot move to stay proceedings on the bail bond stand as until he has perfected special bail in the original action (e). After the proceedings have been stayed on the terms Rule for of paying costs, the defendant should obtain the rule ceedings made for such purpose forthwith, and get the master's served; appointment to tax the costs and serve the rule with the And Costs appointment on the plaintiff's attorney, and proceed to tax such costs in the usual course; it being a condition that proceedings shall only be stayed on payment thereof, and there being no stay of proceedings until they are actually paid. If the plaintiff's proceedings have been If proceedregular and only stayed by the indulgence of the court the defendant cannot afterwards plead in abatement (f). Where a cause is out of court by lapse of time the plaintiff cannot take an assignment of the bail bond (g); but it is otherwise if the assignment is taken at any time before the cause is out of court (h).

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forthwith.

taxed.

ings regular

Defendant

cannot afterwards plead

abatement. If Cause out Bond cannot

of Court,

be assigned.

(d) R. G. H. T. 2 Will, IV.

6. 1 Burt, 130.

(g) 2 Bl. R. 876.

(e) Boughton v. Chaffey. 2 Wils.

(h) 4 Taunt, 715,

Special Bail

may be put in before attachment.

Bail when

sued cannot traverse

arrest.

If Plaintiff

or Defendant

die.

If Defendant become Bankrupt.

If Defendant be an alien.

Special bail may be put in at any time before attachment is issued; and if put in on the same day that an attachment is moved for, the court will set aside the attachment on such terms as the circumstances may warThe bail when sued on the bail bond cannot traverse the arrest (i).

rant.

If the plaintiff or the defendant die before the return of the writ, or before the time expires for putting in special bail, the court will, in either case, relieve the bail to the sheriff (and sometimes with costs), where the plaintiff has proceeded with the knowledge of the death of the party (k): but if he die after the return of the writ, the court will stay the proceedings upon the bail bond on payment of costs, if the plaintiff could not have obtained judgment in the original action, in case he had proceeded therein (7): but if he could have obtained judgment therein the court will only stay the proceedings on payment of debt and costs (m).

If the defendant become bankrupt, and obtain his certificate before any action be commenced upon the bail bond, the court will set aside the proceedings in such action (n) but the safer course is to put in special bail for the defendant and render him, and then apply in the ordinary course to stay the proceedings on payment of costs (o).

And if the defendant be an alien and sent out of the kingdom under the alien act, before the return of the writ, the court will order the bail bond to be given up to be cancelled (p).

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Plaintiff can

in mean time.

If time be given for the justification of bail the plain- If time given tiff cannot, during such time, proceed on the bail bond: not proceed and where a defendant had rendered after time for justification of bail had been allowed (for the purpose of giving a better description of bail), and the plaintiff had afterwards taken proceedings on the bond, the court set the proceedings aside (r).

PROCEEDINGS AGAINST THE SHERIFF.

indorse on

execution.

The sheriff or other officer, or person, to whom any sheriff must writ of capias may be directed, or who may have the Writ day of execution and return thereof, whether by service or arrest, must indorse on the said writ within six days at the latest, after the execution thereof, the true day of executing the same: and if he should fail so to do he is liable, in a summary way, to make such compensation for any damage that may result from his neglect, as the court or a baron may direct (s): and the officer of the court with whom the writ is filed must indorse upon the writ the day and hour when it was filed (t). By the old practice the sheriff could not have been ruled to return the writ until the return day of the writ, but a rule might then have been given (u); the rule may now be given, Rule or Order or order obtained, immediately on its execution: if it be writ. directed to the sheriffs of London or Middlesex it is a four day rule: to any other sheriff six days: the days are reckoned exclusive of the day of service. If the rule to return the writ expires in the vacation, the sheriff if rule expire must file the writ at the expiration of the rule, or as soon

(r) Richardson v. Hodgson. 11

Price, 633.

(s) R. G. M. T. 3 Will. IV.

(t) Ib.

(u) Saund. 61 & 7.

to return

in vacation.

If order made in vacation.

And not obeyed.

may issue.

Rule to

bring in the Body in vacation.

after as the office opens (w). And in case a baron shall make an order in the vacation for the return of any writ issued by authority of the statute, on any day in vacation, and such order shall be duly served, but obedience shall not be paid thereto, and the same shall be made a rule of court in the ensuing term, it is not necessary to serve such rule of court, or to make any fresh demand of perAttachment formance thereon, but an attachment may issue forthwith for disobedience of such order; whether the matter required to be done shall or shall not have been done in the mean time (x). And now, by a rule of court made in the last term, where a rule to return a bailable writ of capias may expire in vacation, and the sheriff or other officer having the return of such writ shall return “cepi corpus" " thereon; a judge's order may thereupon be obtained, requiring the sheriff or other officer, within the same number of days, after the service of such order, as by the practice is prescribed with respect to rules, to bring in the body issued in term, to bring the defendant into court, by forthwith putting in, and perfecting bail above to the action. And if the sheriff, or other officer, shall not duly obey such order, and the same shall be made a rule of court in the term next following, it is not necessary to serve such rule of court, or to make any Attachment fresh demand thereon, but an attachment may be forthwith issued against the sheriff for disobedience of such order, whether the bail may or may not have been put in and perfected in the mean time (y).

If not obeyed.

may issue.

If Writ not returned pur

If, in term time, the sheriff does not return the writ suant to rule. in due time (that is to say, on or before the last day menAttachment tioned in the rule), or if special bail be not perfected

may be

moved for.

(w) R. G. H. T. 2 Will. IV. 3. 11. (y) R. G. H. T. 3 Will. IV. (x) lb.

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