Owen against Nail
| Jurisdiction | England & Wales |
| Judgment Date | 03 June 1796 |
| Date | 03 June 1796 |
| Court | Court of the King's Bench |
English Reports Citation: 101 E.R. 781
IN THE COURT OF KING'S BENCH.
&T.R.702. OWEN V. NAlt ?8l [702] owen against nail. Friday, June 3d, 1796. Under an original writ in a plea of trespass on the ease on promises, the sheriff took a 'bail-bond conditioned for the defendant's appearance in a plea of trespass; and held good. This was an action of debt on a bail-bond, brought by the plaintiff as assignee of the Sheriff of the county of Hertford. The declaration stated that one W. S. Davis was arrested at the suit of the plaintiff by virtue of a writ called a special testatum non omittas capias ad respondendum to answer the plaintiff in a plea of trespass on the case upon premises, to the damage of the said plaintiff of 2001. upon which arrest the defendant as bail or surety for Davis gave the sheriff the bond in question, conditioned for the appearance of Davis "before our Sovereign Lord the King in three weeks from the day of the Holy Trinity next ensuing to answer the said plaintiff in a plea of trespass, to the damage of the said plaintiff of 2001.," &c. To this the defendant pleaded that no such plea of trespass at the suit of the plaintiff against Davis was or is depending in the said Court of our said lord the King before the King himself as in the said condition is mentioned, and whereto Davis was by the said condition required to appear, by reason whereof Davis could not nor can appear thereto in the said Court, according to the form and effect of the said condition, &e. The plaintiff demurred to this plea. Wood in support of the demurrer. The question is whether the bail-bond be or be not void ; the defendant will contend that it is, because it does not pursue the writ, the writ being to answer the plaintiff in a plea of trespass on the case, and the bond being conditioned for the appearance of the defendant in the principal action to answer in a plea of trespass. But that verbal variance is not material. The stat. 23 Hen. 6, c. 9, which directs sheriffs to take bail on arrests, prescribes the condition of the bail-bond " that the prisoner shall appear at the day contained in the said writ, &e. and in such place as the said writ, &c. shall require." And in construing this statute it has been decided that it is not necessary to mention in the condition what the principal action is ; it is sufficient to state the names of the parties and the time and place of appearance. In KirTcbri&ge v. Wilson (a)1 the condition was ad respondendum generally, without saying in what action, which was held to, be no objection, the Court saying, "1st, [703] no other...
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