sufficient to give validity to the assignment, whoever may have signed it; it is therefore no objection that it was signed by one of the under-sheriff's clerks. The assignment must be executed in the presence of two disinterested witnesses; but it is not necessary that they should both subscribe their names in the presence of the officer assigning. The plaintiff in the action must not be one of the witnesses. An action on the bail bond by the assignee must be brought in the court in which the original suit was commenced, even though it be an inferior court. But if the sheriff himself puts *776 *the bond in suit, the action may be brought in any court. By Reg. Gen. H. T. 2 W. IV. r. 30, proceedings on the bail bond may be stayed on payment of costs in one action, unless sufficient reason be shown for proceeding in more. But where several actions are brought on the same bail bond, it is too late, after verdict, to move to stay proceedings on payment of the costs of one action only. When the sheriff is ruled to bring in the body, proceedings cannot be taken on the bail bond until that rule has expired. A declaration de bene esse, in the original action, is not a waiver of a previously commenced suit on the bail bond.h Liability The bail are liable to the plaintiff for the whole debt (withof the bail. out regard to the sum sworn to) and costs to the full extent of the penalty in the bond. Prima facie, the bail to the sheriff are liable to the charges of putting in bail above; if they apply to an attorney to put in bail above, they are liable for their expenses, but not for the subsequent expenses of the suit. It seems that where the bail are let in upon terms, to try the cause of the principal, the money levied to abide the event, and the bail bond to stand as a security, the bail are not liable beyond the penalty on the bond, although the debt and costs exceed Middleton v. Sandford, 4 Camp. 36. Harris v. Ashby, S. N. P. 572, n. contra. Kitson v. Fagg, supra. Phillips v. Barlow, or Barber, 1 Bing. N. C. 433. (27 Eng. C. L. 446.) 6 C. & P. 781. (25 Eng. C. L. 649.) 1 Scott, 322. • White v. Barrack, 1 Mees. & Wels. 425. 2 Gale, 57. Morris v. Rees, 2 Bl. 838. 3 Wils. 348. Walton v. Bent, 3 Burr. 1923. 2 Saund. 61. Chesterton v. Middlehurst, 1 Burr. 642. Per Taunton, J., in Meller v. Palfreyman, 4 B. & Ad. 149. (24 Eng. C. L. 42.) Even before the new rules the defendant could not object, under non est factum, that the action was brought in a wrong court. Wright v. Walmsley, 2 Camp. 396. Reg. Gen. H. T. 2 W. IV, reg. 28. Before this rule it was held by the Court of King's Bench, in Donatty v. Barclay, 8 T. R. 152, that an action even by the sheriff or his officer must be brought in the court where the original suit was commenced; but it was held otherwise in Newman v. Faucitt, 1 H. Bl. 631. Yorke v. Ogden, 8 Price, 174. See 2 Saund. 61. 1 S. N. P. 574. 'Johnson v. Macdonald, 2 Dowl. P. C. 45. Reg. Gen. H. T. 2 W. IV. Whittle v. Oldaker, 7 B. & C. 478. L. 88.) Vernon v. Turley, 2 Gale, 81. 1 Mees. & Wels. 316. (14 Eng. C. ¡ Stevenson v. Cameron, 8 T. R. 28. Clark v. Bradshaw, 1 East, 91. Orton v. Vincent, Cowp. 71. Mitchel v. Gibbons, 1 H. Bl. 76. › Hector v. Carpenter, 1 Stark, 190. (2 Eng. C. L. 351.) ་ the same after the trial, and the plaintiff's debt would have been fully covered by the security, when the bail were first let in to try upon terms." *SECTION XIII. THE DECLARATION. THE name of the person against whom the writ is stated to have been issued, should be stated accurately in the declaration. Where the declaration in reciting the writ stated that the sheriff, to whom it was directed, was commanded to take "the said defendant, T. A. to answer the plaintiffs in a plea of trespass, and also to a bill of the plaintiffs against the said defendants;" held, on special demurrer, that it was ill, in not clearly showing against whom the writ was issued, or who was the defendant in the plaintiff's suit on the writ. Where the declaration stated that the writ was against the said W. Cocken by the name of W. Cocker, after verdict judgment was arrested, on the ground that such a misnomer on the writ made the arrest illegal and the bail bond void, there not being an averment that the defendant was known as well by one name as the other. But a declaration stating the writ in its very terms, and then averring that the now defendant was and is known as well by the one name as the other, would be good.e It is not, however, necessary that the declaration should aver that the writ on which the defendant was arrested was issued on an affidavit of debt, and indorsed with the sum sworn to, for the court will presume that all the proceedings antecedent to the bail bond were regular. Before the uniformity of process act, (2 W. IV, c. 39,) it was considered sufficient to declare on the bond according to its legal effect, without setting forth the words of the condition.s Goss v. Harrison, 2 Smith, 354. *777 Scandover v. Warne, 2 Camp. 270. Where the plaintiff declared in the commencement of his declaration as assignee of the sheriff, and then set forth a bond to himself, it was held to be no ground of demurrer. Reynolds v. Walsh, 1 C. M. & R. 580. Large v. Attwood, 1 D. & R. 551. Finch v. Cocken, 2 C. M. & R. 196. 1 Gale, 130. 3 Dowl. 678. No advantage can be taken at the trial of a misnomer of the plaintiff, though there be a person of the name erroneously used; it is a question of fact who is the real plaintiff. Moody v. Aslatt, 1 C. M. & R. 771. 1 Gale, 47. Id. 2 Ch. Pl. 292. Sharpe v. Abbey, 5 Bing. 193. (15 Eng. C. L. 413.) Dorrington v. Bucknell, 11 Moore, 445. (22 Eng. C. L. 415.) Wilcoxon v. Nitingale, 4 Bing. 501. (15 Eng. C. L. 57.) 2 M. & P. 312. Bonfellow v. Steward, 3 Moore, 214. 76. (14 Eng. C. L. 166.) Holroyd. (4 Eng. C. L. 431.) Shaw v. Lee, 3 Stark. *but now the condition should be set forth verbatim. The writ in the original action, the court out of which it issued, and the condition, should be set out accurately. Where the condition set out on the record was, to answer the plaintiff in a plea of trespass, and also to a plea of the plaintiff to be exhibited against the defendant for 601. upon promises, it was held to be a fatal variance. So where the writ set out was "to appear before his majesty's justices of the bench at Westminster," and the condition was to appear before the King at Westminster, it was held a fatal variance, for there were different courts. But where the declaration stated the arrest to be by virtue of a capias sued out of the court of our lord the king, before Sir W. D. B and others, then his majesty's justices of the bench at Westminster, and averred the condition of the bond to be, that if the principal should appear according to the exigency of the said writ, in the said court, &c., the bond was void, and the breach was the non-appearance according to the exigency of the said writ. On the production of the bond, the condition was for the appearance of the principal "before our sovereign lord the king at Westminster, on, &c.," to answer the plaintiff in a plea of trespass, and also to answer him according to the custom of the king's court of Common Bench; it was held no variance." It may be alleged that the sheriff assigned the bond to the plaintiff according to the statute, without adding that the assignment was made under the hand and seal of the sheriff; and though the statute requires the indorsement to be made in the presence of two witnesses,f it is not necessary to set forth the names of the witnesses in the declaration.s If, however, it appear on the face of the declaration that the assignment was *779 *attested by one witness only, it will be demurrable. As the assignment is not by deed, a profert is unnecessary.' a2 Ch. Pl. 294. Baker v. Newbegin, R. & M. 93. (21 Eng. C. L. 389.) Abbott. Crofts v. Stockley, 5 Bing. 32. (15 Eng. C. L. 356.) 2 M. & P. S1. See Jones r. Sturdy, 9 East, 55. • Dawes v. Papworth, Willes, 408. 2 Saund. 61. 'See ante, 775. Neat v. Mills, Fort. 371. Willes, 409. n. ¡Lease v. Box, supra. Lease v. Box, 1 Wils. 122. SECTION XIV. THE PLEADINGS. A PLEA of non est factum puts in issue the execution of the Non est bond only; but under this plea the defendant may show that factum, the bond was void. The defendant may plead that no process issued against the principal, or that the debt was levied on the principal since the commencement of the action. So in an action by the assignee of the sheriff the defendant may plead that the bond was not assigned according to the statute. It is a good plea that no affidavit of debt was made; though a plea that no affidavit of debt was filed; or that no proper affidavit had been made,' is bad. The practice of the court, unless it goes to the merits of the defence, cannot be pleaded.s The defendant cannot plead that the cause was out of court for want of a declaration before the assignment of the bond was taken; nor can matters of defence in equity, or merely founded on the discretion of the court, be pleaded; as that the action was brought for the benefit of, or as trustees for, the sheriff's officer.j *The defendant may plead that bail above was perfected in *780 due time according to the conditions of the bond. Before the Comperuit uniformity of process act, it was a good plea that the principal ad diem. appeared, according to the condition of the bond or exigency of the writ, which was technically termed comperuit ad diem. But we have seen that the render of the principal, or his return into custody within the eight days, will not now discharge the bond, the condition of which is that bail should be put in above. It is a good plea that the bond was taken for ease Taken for and favor after the time limited for putting in special bail; ease and and to this plea, if the action be at the suit of the sheriff, he favor. should pray an enrolment of the bond, and after setting it out See ante, 695. On the plea of non est factum, the bail may be admitted to prove circumstances rendering the bond illegal; as that it was executed after the return, or showing that the party bailed never was in the country or heard of the writ, and that the bail was imposed upon; but under this plea it cannot be objected that the sheriff returned non est inventus after taking but before assigning the bond. Per Littledale, J., in Taylor v. Clow, 1 B. & Ad. 223. (20 Eng. C. L. 378.) The allegation of arrest is not traversable by the bail. Id. 3 Ch. Pl. 866. 2 Saund. 61. Dawes v. Papworth, supra. Phillips v. Barlow, 6 C. & P. 781. (25 Eng. C. L. 649.) Id. Knowles v. Stevens, 1 C. M. & R. 26. nom. Snow v. Stevens, 2 Dowl. 664. 'Hume v. Liversedge, 1 C. & M. 332. Ball v. Swan, 1 B. & A. 393. Warmsley v. Macey, 5 Moore, 168. (16 Eng. C. L. 392.) The mode of taking advantage of irregularities in practice is by application to the court, or by plea in abatement. Id. Carmichael v. Troutbeck, cited in Sampson v. Brown, 2 East, 442. 3 Ch. Pl. 869. O'Kelly v. Sparkes, 10 East, 377. J Scholey v. Mearns, 7 East, 148. * Ante, 773. See 3 Ch. Pl. 8. a state that he was sheriff, the defendant's arrest, that the bond was made to him as sheriff, and traverse the ease and favor." If the action be at the suit of the assignee, the replication should state that the bond was duly executed, and, denying the ease and favor, conclude to the country.b Abney v. White, Carth. 301. 2 Saund. 60. |