a condition or defeasance to make void the same upon payment of a lesser sum at a day or place certain, if the obligor, his heirs, executors, or administrators have, before the action brought, paid to the obligee, his executors, or administrators, the principal and interest due by the condition or defeasance of such bond, though such payment was not made strictly according to the condition or defeasance, yet it may be pleaded in bar of such action, and shall be as effectual a bar thereof as if the money had been paid at the day and place according to the condition and defeasance, and had been so pleaded."(1) This enactment is, however, confined to an actual payment; therefore a tender and refusal of principal and interest after the day cannot be pleaded." A plea of payment of part of the sum mentioned in the condition, after the day, is bad on demurrer.b If the act to be done by the obligor, is in its nature transi- Performtory, and no time is limited for that purpose, it ought to be per- ance. formed in a convenient time, and a request is unnecessary. But if the condition be for the performance of an act that is local, and to which both the concurrence of the obligor and obligee is necessary, and no time is mentioned for that purpose, the obligor hath during his life to perform it, unless hastened *by request. If the bond is conditioned for the payment of *770 money or for the performance of a collateral act on demand, a demand is necessary before the obligee can put the bond in suit; but if there be a duty to pay the money or perform the act, bringing the action will be a sufficient demand. d Performance must be according to the terms of the condition; as where the obligor was bound to leave his children 2007. jointly, and he gave his eldest son an estate in land worth more than 50%., and his other three children 50/. a piece, it was held not to be a performance of the condition, though the parties interested had derived more benefit therefrom than they should from a strict performance. Payment by a collector of taxes of money received by him to the account of a different year from that for the service of which they were collected, is a performance of the condition of the bond for due payment. A literal compliance with the terms of the condition is not B. N. P. 171. Dixon v. Parkes, 1 Esp. 110. 2 Saund. 48. Pleas of payment are technically termed solvit ante diem, solvit ad diem, and solvit post diem respectively. Heretofore it was not unusual to plead solvit ad diem and solvit post diem at the same time, but by Reg. Gen. H. 4 W. IV, both these pleas are not allowed. Ashbee v. Pidduck, 1 Mees. & Wels. 564, ante, 764. Co. Lit. 208, b. See Gibbs v. Southan, 5 B. & Ad. 911, (27 Eng. C. L 235,) ante, 742. Carter . Ring, 3 Camp. 450, ante, 742. 1 Saund. 33, a. Taylor v. Bird, 1 Wils. 280. And see Irish Society v. Needham, 1 T. R. 482. Haydon v. Wilshore, 3 T. R. 372. Collins v. Gwyne, 9 Bing. 544. (23 Eng. C. L. 375.) (1) (Summers v. Loder, 7 Halsted, 104.) sufficient, unless the performance be in accordance with the intent of the parties." 1.-The nature and requisites of a bail bond.] Ar common law the sheriff was not obliged to take bail from a defendant arrested upon mesne process, unless he sued out a writ of mainprize; but by the 23 Hen. VI, c. 9, it is enacted, "that *771 *sheriffs, under-sheriffs, bailiffs of franchises and other bailiffs, shall let out of prison all manner of persons by them arrested, or being in their custody by force of any writ, bill, or warrant, in any action personal, or by cause of indictment of trespass, upon reasonable sureties of sufficient persons, having sufficient within the counties where such persons are let to bail, to keep their days in such place as the said writs, bills, or warrants, shall require; persons in ward by condemnation, execution, capias ullagatum, or excommunicatum, surety of the peace, or by special commandment of any justice excepted. And no sheriff, &c., shall take, or cause to be taken or made, any obligation for any cause aforesaid, or by color of their office, but only to themselves, of any person, nor by any person, which shall be in their ward by course of law, but upon the name of their office, and upon condition that the prisoners shall appear at the day and place contained in the writ, &c.; and if any sheriffs, &c., take any obligation in other form by color of their office, it shall be void."b In what cases the sheriff may take a bail bond The sheriff has no authority under the above statute to take a bond for the appearance of persons arrested by him under process issuing upon an indictment at the quarter sessions for a misdemeanor; he can only take a recognisance for their appearance. But though it was formerly considered that the statute did not authorise a sheriff to take a bail bond from a defendant who is in custody under an attachment for non Sherman v. Tylly, Cro. Car. 597. Bache v. Proctor, Doug. 382. Edwards v. Brown, 1 C. & J. 307. If the defendant tender a bail with sufficient sureties within the bailiwick, and the sheriff refuse to accept it, he will be liable to an action on the case. 1 Saund. 61, b. See Lovell v. Plomer, 15 East, 320. Bengough v. Rossiter, 4 T. R. 505. 2 H. Black. 418, 426, 435. payment of costs, because such a process was in the nature of an execution, it has been determined by later authority, that a sheriff may take a bond in such cases; for as the non-payment of money creates a civil right, an attachment issued to enforce that right must be considered in the nature of a mesne process.b It was also formerly considered that a sheriff could not take bail, on an attachment out of Chancery, but in a modern case *the court held that such bonds were neither compellable to be *772 taken, nor prohibited by the statute; but that they were good at common law; and that whether they be taken or not, was in the discretion of the sheriff as regulated by the practice of the court.d bond. The security required by the statute is a bond; therefore, an Requisites agreement in writing not under seal is void; and the bond of a bail must be made to the sheriff himself, as such by his name of office, and not to his bailiffs, for though the statute mentions the bailiff of a franchise it means those officers who have the return of process; but where it is directed to the sheriff, the bond must be made to him. And the conditions of the bond must be for the appearance of the party at the return of the writ, and for no other purpose; so that if there be any other condition expressed in the bond, or the bond be single or with an impossible condition, or if it be executed before the condition is filled up, it is void. The statute does not require the nature of the action to be inserted in the condition of the bond; if it sets forth the names of the parties and the time and place of appearance substantially, it is sufficient; therefore a mere informality or variance in those particulars will not vitiate the bond. Where under an original writ in a plea of trespass on the case upon promises, the sheriff took a bail bond conditioned for the defendant's appearance in a plea of trespass, it was held sufficient. So where the writ was to appear before the king, wheresoever he should then be in England, and the sheriff took a bail bond for the party's appearance before the king at Westminster on the day named in the writ; held, that it was a substantial compliance with the statute, so as to entitle the assignee of the sheriff to recover on the bond." But where a bail bond, in reciting the writ of capias, stated "that a copy of the writ was duly delivered to "omitting the name Phelips v. Barrett, 4 Price, 23. Per Holroyd, J., Lewis v. Morland, 2 B. & A. 65. *773 Morris v. Hayward, 6 Taunton, 569; (1 Eng. C. L. 435;) recognised by Bayley, J., in Lewis v. Morland, 2 B. & A. 63, who said it was Barrett, supra, 2 Saund. 59, a. 5th Ed. 2 Saund. 59, b. 60. Rogers v. Reeves, 1 T. R. 418. 569. Graham v. Crashaw, 3 Lev. 74. Powell v. Duff, 3 Rock, 4 M. & S. 338. at variance with Phelips v. Samuel v. Evans, 2 T. R. 12 Saund. 60. Villiers v. Hastings, Cro. Jac. 286. Kirkebridge v. Wilson, 2 Lev. 123. Atkinson ". Saunderson, Tidd, 223. Owen v. Nail, 6 T. R. 702. Jones v. Stordy, 9 East, 55. A render not dis of the defendant and likewise omitted his name in the statement of the condition of the bond; it was held to be insufficient, and the court in an action of escape brought against the sheriff, would not supply the deficiency.a Although the statute uses the word "sureties," the bond will not be void if taken with one surety only. If more than two sureties be tendered and two of them are each worth property to the amount of the penalty in the bond, it is immaterial what property the others have. Where the writ issued against two defendants, and the sheriff took a bail bond conditioned for the appearance of one only, it was held no ground of demurrer to a declaration on the bond.d The 12 Geo. I, c. 29, s. 2, directs that the sheriff shall take bail for the sum indorsed upon the writ and no more. In practice however it is taken in double the sum sworn to; and it will be no objection to the bond that it be taken in a greater amount. But an attorney ought not to prepare a bail bond for a larger sum than is requisite according to the practice of the court.f 2.-When a bail bond may be put in suit.] If the defendant do not put in special bail within eight days after the execution of the writ inclusive of the day of execution, the bail bond is forfeited and may be put in suit.5 Before the uniformity of process act, (2 W. IV, c. 39,) a render of the prin- of the principal might have been made at any time before the cipal will return of the writ; and that render would operate to discharge the charge the bail bond; but now writs are returnable immebail bond. *diately after they are executed, and the sheriff may then be *774 ruled to return them; therefore the effect of the bail bond is, that if special bail be not put in, the plaintiff may proceed either against the sheriff or on the bond, for the condition of the bond is to put in special bail, consequently a surrender of the principal within eight days will not discharge the bond; for there would be great inconvenience if the sheriff might be called upon to return the writ, and that the defendant might at the same time discharge the bail bond by a render, and a Holding v. Raphael, 1 Harr. & Woll. 571. 5 N. & M. 655. 2 Saund. 61, c. Beawsage's case, 10 Co. 101. Id. Matson v. Booth, 5 M. & S. 223. Grottick v. Phillips, 9 Bing. 721. (23 Eng. C. L. 438.) 3 Moor. & S. 132. • Norden v. Horsley, 2 Wils. 69. 'Wingrave v. Godmond, 6 C. & P. 66. (25 Eng. C. L. 284.) Tindal. The statute applies only to securities given to the sheriff or other officer; therefore bonds given to the plaintiff may be valid though not in the form prescribed by the statute. Hall v. Carter, 2 Mod. 304. 2 Saund. 60. Hillary v. Rowles, 5 B. & Ad. 460. (27 Eng. C. L. 105.) 2 Dowl. 201. Alston . Underhill, 1 C. & M. 492. But there could be no render without the consent of the sheriff, and it was optional with him whether he would accept the surrender or not. Hamilton v. Wilson, i East, 383. Jones v. Lander, 6 T. R. 753. Plimpton v. Howell, 10 East, 100. Lewis v. Davies, 5 Moore, 267. (16 Eng. C. L. 399.) put a stop to proceedings either against the sheriff or the bail. Where a bail bond has been taken and special bail has not been put in within eight days, the plaintiff may declare de bene esse, and if he neglects to do so, he is not entitled to have the bail bond stand as a security. The bail bond is discharged by the defendant's giving a cognovit for the payment of the debt and costs without the knowledge of the bail. But where a cognovit was taken with the consent of the bail, and the debt is not paid pursuant to the undertaking, it was held that the plaintiff should give the bail notice that the cognovit is unsatisfied before he could commence proceedings against him. After the bond is forfeited, giving time to the principal will not discharge the bail.e bail bond 3.-Assignment of a bail bond and proceedings thereupon.] The sheAt common law a bail bond was not assignable so as to give riff must the plaintiff a right to sue upon it in his own name, but the assign the 4 & 5 Anne, c. 16, s. 20, enacted, "that if any person shall be if the arrested by any writ, bill, or process, issuing out of any of the plaintiff king's courts of record at Westminster, at the suit of any com- requires it mon person, and the sheriff, or other officer takes bail from such person, the sheriff, or other officer, at the request and costs of the plaintiff in such action or suit, or his lawful attorney, *775 shall assign to the plaintiff in such action the bail bond, or other security taken from such bail by indorsing the same, and attesting it under his hand and seal, in the presence of two or more credible witnesses, which may be done without any stamp provided the assignment so indorsed be duly stainped before any action brought thereupon; and if the bail bond or assignment, or other security taken for bail, be forfeited, the plaintiff, in such action, after such assignment made, may bring an action thereupon in his own name; and the court, where the action is brought, may, by rule of the same court, give such relief to the plaintiff, and defendant in the original action and to the bail, as is agreeable to justice, and such rule shall have the effect of a defeasance to the bail bond."f The provisions of this statute do not apply to proceedings in a court of equity; therefore a bail bond given by a party attached for contempt in not putting in an answer in Chancery is not assignable. The creditor's remedy is by action in the name of the sheriff. The assignment of the bond may be made by the sheriff himself, or by the under-sheriff in the name of the sheriff. It seems that the seal of office will be Hodgson v. Mee, 1 Harr. & Woll. 398. 5 N. & M. 302. Id. Call v. Thelwell, 1 Gale, 16. 1 C. M. & R. 780. Staines v. Stoneham, 2 C. M. & R. 658. 1 Gale, 327. • Farmer v. Thorley, 4 B. & A. 91. (6 Eng. C. L. 356.) Clift v. Gye, 9 B. & C. 422. (17 Eng. C. L. 411.) • Woosman v. Price, 1 C. & M. 352. By 5 Geo. IV, c. 41, the stamp duty upon the assignment of the bond is repealed. Meller v. Palfreyman, 4 B. & Ad. 146. (24 Eng. C. L. 42.) 1 Nev. & M. 696. 2 Saund. 61. Kitson v. Fagg, 1 Stra. 60. |