Againstheirs, E F bound himself and his heirs (a) firmly by the said writing &c. obligatory. Nevertheless, the said E F, in his life-time, and the said CD, since the death of the said E F, (although often requested so to do,) have not, nor hath either of them as yet paid the said sum of . or any part thereof to the said A B, but the said E F in his life-time, and the said C D since his decease, have hitherto wholly refused, and the said CD still wholly refuses so to do. To the damage, &c.

* 161

15. Against an heir and

the device of the obli gor.(b)

A B

complains of CD and E F, which said CD is heir of G H, deceased, and which said E F is devisee of the said G H, of divers lands and tenements of the said G H, deceased, by his last will and testament, being in the custody, &c. of a plea that they render him the said A B —l. of lawful, &c. which they owe to and unjustly detain from him. For that whereas the said G H, of whom the said CD is heir, and the said E F is devisee as aforesaid, in his life-time, to wit, on, &c. at, &c, by his certain writing obligatory, sealed with his seal, and to the court, &c. (profert as ante, 151.) acknowledged himself to be held and firmly bound unto the said AB, in the said sum of. above demanded to be paid to the said AB when he the said G H should be thereunto requested, and for which payment well and truly to be made, the said G H did by the said writing obligatory, bind himself and his heirs to the said A B. Nevertheless, the said G H, in his life-time, and the said CD, his heir, and the said E F, devisee as aforesaid, (although often requested so to do,) have not, nor hath either of

(a) It must be shewn in the declaration that the heir was expressly bound, for otherwise he is not chargeable, Com. Dig. Pleader, 2 E. 2. Vin, Abr. tit. Heir, K. 2. 2 Saund. 184. n. 1. 156. &c.

(b) See the precedents, Clift, Ent. 243. pl. 19. Lill. Ent. 145. Id. 529, 530. 2 Rich. C. P. 241. 5 Wentw. 374. Index, vol. 7. 539. 2 Mall. Ent. 186, 187. In some of the precedents, the date and substance of the will, and that the obligor died seised, are stated, see 2 Mall. Ent. 186, 187. 2 Rich. C. P. 241. Lil.

Ent. 145. 529, 530. but in others, these facts are not stated, see Clift. Ent. 243. 5 Wentw. 374, see vol. 18. MSS. 35. where the declaration was helden good on demurrer, and this according to the principle in 1 Salk. 355. 2 Saund. 7. n. 4. seems sufficient. The liability of the devisee depends on statute 3 W. & M. e. 14. see the constructions of this statute, 2 Saund. 7. n. 4. Bac. Abr. Heir. Vin. Abr. Heir, Z. d. The devisee must be sued jointly with the heir in equity, as well as at law, id. ibid

them, as yet paid the said sum of →. above demanded, or any Against heirs, part thereof to the said A B, but to pay the same to the said AB have wholly neglected and refused, and the said CD and E F still neglect and refuse to pay the same, or any part thereof to the said AB. To the damage, &c.

*Markham and Le Blanc.(c)

next after

* 162

-,(d) in

Hilary Term, 47 Geo. III.

the first suit

(to wit.)(e) A B, assignee of EF, Esq. sheriff (f) of 16. On a bailbond by the the county of according to the form of the statute(g) assignee ain such case made and provided, complains of CD being in gainst the principal or the custody, &c. of a plea that he render to the said A B, as as- bail, where signee as aforesaid, the sum of . (the penalty) of lawful was in K. B. money of Great Britain, which he owes to and unjustly detains by bill. from him. For that whereas the said A B, on, &c.() in the The writ. year of the reign of our lord the now king, sued and prosecuted out of the court of our said lord the king, before the king himself, the same court then and still being holden(i) at Westminster, in the county of Middlesex, against the said C' D, For if the declaration be against one of the bail, say, "against one GH"] a certain writ of our said lord the king, called a latitat, directed to the sheriff of —, (or if a bill of Middlesex, say, "a certain precept called a bill of Middlesex, whereby the sheriff

(c) This action, whether in the name of the sheriff or the assignee of the bond, must be brought in the court, from which the process in the original action issued, 2 Saund. 61. b. 8 T. R. 152. acc. 1 H. Bl. 631. cont. (d) If the bond was assigned after the first day of term, the declaration must be entitled specially, or will be demurrable, 1 T. R. 116. 7 T. R. 474. Ante, 1. n. (a).

(e) The venue is transitory, Fortes. 366. Stra. 727. Ld. Raym.

1455.

declaration would be demurrable if
they be described as sheriff's, Bac.Abr.
Sheriff, K. 162. 2Ld. Raym. 1135.

(g) 4 & 5 Ann. c. 16. s. 20. see
the constructions thereon in 2 Sanod.
Tidd, 248. 3 BI.
59. a. b. n. 3.

Com. 290.

(h) This may be the teste of the writ, or the day it is actually issued, but the first is preferable, see the next note.

(i) This allegation is unnecessary, and if the writ be stated to be sued out in vacation, would render the de. (ƒ) In Middlesex the two officers claration demurrable, 5 Burr. 2586. constitute only one sheriff, and the 3 T. R. 184, 1 Saund. 300. b. n. 7.

VOL. II.

[ 19 ]

On bail bonds. of Middlesex was commanded to take, &c.) by which said writ,

* 163

Indorsement for bail.

Delivery to the sheriff.

The arrest.

* 164

our said lord the king commanded the said sheriff to take the
said CD if he should be found in his bailiwick, and him safely
keep so that he might have his body before our said lord the
king, at Westminster, in the county of Middlesex, on
next after to answer the said A B of a plea' of trespass,
and also to a bill of the said A B, against the said CD for —.
upon promises according to the custom of his said majesty's
court, before his said majesty to be exhibited, and that the
said sheriff should then have there that writ, (or if the arrest
was on a bill of Middlesex, say, "precept.") Which said
writ (or "precept") afterwards and before the delivery there.
of to the said sheriff of the said county of --- to be exe-
cuted as is hereinafter mentioned, was marked and indorsed for
bail for -. by virtue of an affidavit(k) of the cause of action
of the said AB in that behalf before then made, and duly
affiled of record, in the said court of our said lord the king,
before the king himself, according to the form of the statute
in such case made and provided,(/) and which said writ (or
"precept") so indorsed, afterwards and before the said return.
thereof, to wit, on, &c.(m) to wit, at, &c.(n) was delivered to
the said E F, who then and from thence, until and at, and
after the said return of the said writ, (or "precept,") was
sheriff of the said county of -, in due form of law to be
executed. By virtue of which said writ (or "precept,") the
said E F, so being sheriff as aforesaid, afterwards and before
the said return of the said writ, (or “precept,”) to wit, on,
&c. last aforesaid, and within his bailiwick as such sheriff. to
wit, at, &c. aforesaid,(0) took and arrested the said C D by his
body,() and then and there had and detained him in his cus-
tody, as such sheriff, at the suit of the said AB for *the

(k) It is not necessary to aver that it was by virtue of an affidavit, and if the averment be introduced, though unnecessarily, the affidavit must in some cases be produced in evidence, 1 B. & P. 280. 1 Burr. $30. It is, therefore, in general advisable, merely to state the indorsement for bail, without referring to the affidavit.

(?) 12 Geo. I. c. 29.

(m) This day is not material: it is
usual to insert the date of the bail
bond.

(n) The venue in the action.
(a) The venue.

(p) This allegation is unnecessary,
and is not traversable, 2 Saund. 59. b.

H

cause aforesaid. And the said CD being so arrested, and in On bail bonds. custody of the said E F so being sheriff as aforesaid, by vir tue of the said writ, (or "precept,") at the suit of the said A B, the said CD afterwards and before(g) the said return of the said writ, to wit, on, &c. last aforesaid,(r) and within his bailiwick, as such sheriff, to wit, at, &c. aforesaid,(9) took bail for The bail bond the appearance of the said CD, at the return of the said writ, (o "precept,") according to the form of the statute in such case made and provided,() and on that occasion the said CD, (or if the action be against one of the bail, the said C D, as bail and surety for the said G H,) then and there, to wit, on, &c. last aforesaid, at, &c. aforesaid, by his certain writing obligatory, com monly called a bail-bond, sealed with the seal of the said CD, and now shewn to the court of our said lord the king, before the king himself here, the date whereof is the same day and year last aforesaid, acknowledged himself to be held and firmly bound to the said E F so then being sheriff of the said county of —, as aforesaid, as such sheriff, by the name, descrip tion and addition of, sheriff of the county of , in the penal sum of. of good and lawful money of Great Britain, to be paid to the said sheriff, or his certain attorney, executors, administrators, or assigns, when he the said C D should be thereunto afterwards requested, with and under a certain condition thereunder written, that if the said CD (or, if The condi tion thereof against the bail, "if the said G H") should appear before our aid lord the king, at Westminster, on to answer the said A B in a plea of to a bill of the said AB against the said promises, according to the custom of the said lord the king, before the king himself to be exhibited, that then the said obligation should be void, otherwise *should be, and remain in full force and virtue. As by the said writing obligatory, and the condition thereof, reference being thereunto had, may more fully and at large appear. And the Breach of said A B in fact saith, that the said C D did not appear before

next aftertrespass, and also CD for -1. upon said court of our

* 165

contract.

(2) The hond is void if taken after

the return day of the writ, 2 Saund.

60.a.
! Ld. Raym. 352.
(r) The date of the bond.

(s) The venue.

(t) 23 H. VI, 0. 9. 2 Saund. 59. 61. c. d. s. 5.

On bail bonds. Our said lord the king, at Westminster, on

Assignment

of bond to plaintiff.

* 166

next after
-, in the condition of the said writing obligatory mention-
ed, according to the exigency of the said writ, (or "precept,)
but therein wholly failed and made default, whereby the said
writing obligatory became forfeited; and the said AB further
saith, that the said writing obligatory being so forfeited, and the
money therein specified remaining unpaid and unsatisfied to
the said sheriff, he the said E F(u) so being sheriff of the said
county of
as aforesaid, afterwards, to wit, on, &c.(x) to
wit, at, &c. aforesaid,(y) at the request of the said A B, the
plaintiff in the said suit, by an indorsement* on the said wri-
ting obligatory, duly made,(z) and attested in the presence of
two(a) credible witnesses, and sealed with the seal of office of
sheriff of the said county of -, assigned the said writing
obligatory to the said A B, according to the form of the statute
in such case made and provided.(5) As by the said assign-
ment indorsed on the said writing obligatory as aforesaid, and
duly stamped(c) before the commencement of this suit, ac-
cording to the form of the statute in such case made and pro-
vided, and to the court of our said lord the king now here
shewn, (d) the date whereof is the day and year last aforesaid,
may more fully appear. By means whereof, and by force of
the statute(e) in such case made and provided, an action hath
accrued to the said A B,(f) as assignee of the said E F, sa
being sheriff of the said county of as aforesaid, to de-
mand, and have of and from the said C D the said sum of -.
above demanded. Yet the said CD (although often re-

este