exact amount of debt sought to be recovered, which must not be confounded with the sum for which the defendant is held to bail, as it is often a larger

sum.

The agent having received the affidavit with these instructions, will issue the writ; and as every sheriff is obliged to have a deputy in London for the purpose of granting warrants, the agent can also get the warrant forwarded to the officer.

The writ of capias remains in force one calendar month from its date (inclusive of the day of the date), and no longer.

As soon as the plaintiff's attorney hears that the writ has been executed (if the defendant have given bail to the sheriff, or if he have deposited the sum sworn to and 107. in lieu of bail, in pursuance of 43 Geo. III. c. 46, s. 2), it will be generally prudent to rule the sheriff to return the writ immediately, that no time may be lost if it should afterwards be thought prudent to proceed with a view to obtain an attachment against the sheriff.

If the defendant do not put in bail above in due time, that is, on the seventh day after the arrest, the bail-bond is forfeited,; and the plaintiff has his choice of two modes of proceeding; either, 1st, by taking an assignment of the bail-bond, and bringing an action on it; or, 2ndly, by proceeding against the sheriff to obtain an attachment.

If it be determined to take an assignment of the bail-bond and proceed against the bail, the first step is to apply to the under-sheriff for the bail-bond, with an assignment of it, and having received it, the agent must be instructed to issue a writ of summons against the parties who have entered into the bond. Proceedings on the bail-bond must always be by writ of summons in an action of debt, and this has been sufficiently adverted to before.

It is only necessary to mention here, that if the bail and the defendant in the original action (who always joins in the bond) are all to be sued, they should be

sued jointly in one action, unless there be sufficient reason for proceeding in more than one; for if sued severally, the Court will consider all but one action as brought unnecessarily, and the plaintiff will not be allowed the costs of the others, if an application be made to stay the proceedings on payment of the debt and costs in one action, within a reasonable time. -(H. 2 Will. IV. Rule 30.) But if there be any sufficient reason, as where only two of the parties to the bond can be found to be sued, these two must be sued in separate actions, for two out of the three cannot (if the bond be in the usual form) be sued jointly, or at least if they were, they might plead in abatement, and in that case the costs of both actions will be allowed, there being a necessity for bringing separate actions.

If it be determined to proceed against the sheriff, the agent must be instructed to that effect, and he will first rule him to return the writ and then to bring in the body; and if, by the time the latter rule expires, bail in the Court above be not perfected, an attachment will be obtained against the sheriff, and he must pay the debt and costs.

If, however, bail above be put in in time, the plaintiff's agent informs the country attorney of their names, &c., and the latter should then inquire into their responsibility. If he find that they are responsible he may so inform his agent, and there is nothing further to be done with respect to them.

If, however, the bail, or one of them, be found insufficient, and the plaintiff mean to object to them, an affidavit showing their insufficiency must be made and sent to the plaintiff's agent; this affidavit must not contain merely a general allegation that the bail are not responsible, but it must state facts from which the judge may be able to infer that circumstance; as that their rent, taxes, or rates have been long in arrear; that they have suffered themselves to be sued for small debts; that they are indebted to their tradesmen, who cannot get paid; that their property

is mortgaged to the full amount, or the like, as it is only where facts are stated that the Court or a Judge will reject bail. It is to be observed, however, that it is not advisable to object to bail, except on pretty sure grounds; for where the bail have made the affidavit showing their property, if the opposition should be unsuccessful, the party opposing will be ordered to pay the defendant's costs of justification. (Rule T. 1 Will. IV.) If the bail are rejected, the proceedings go on either on the bail-bond, or against the sheriff, in the manner which has been already explained, as if no bail had been put in.

CHAPTER VI.

COGNOVIT-WRIT OF INQUIRY-JUDGMENT

BY DEFAULT.

Giving time on Cognovit-In Actions on Promises-In Debt -In other Actions-Attestation-When Defendant has been arrested-Filing-Judgment by default-Rule to compute-Writ of Inquiry-Notice of Inqniry-Execution of Inquiry.

Ir a defendant have no defence to the action, but be desirous to save expense and to obtain some time to enable him to pay the debt and costs, he may propose to the plaintiff's attorney to give a cognovit, on the time wanted being allowed him. An attorney for a plaintiff will usually consent to give at least as much time as the defendant could obtain by driving the plaintiff to trial.

A cognovit is a confession of a declaration, or supposed declaration, in an action; but is often accepted, and may properly be so, before declaration in the action, as well as after. But if there be any apprehension of the defendant becoming bankrupt or insolvent, it is much safer for the plaintiff not to accept the cognovit till after declaration (a). If the cognovit be given after plea, it always contains a retraxit of the plea in these words: "I hereby withdraw the plea by me pleaded in this cause, and do confess," &c. If the cognovit in an action on promises be given before declaration, it may confess the exact sum agreed upon, but if it be given after declaration, it is usual formally to confess the damages laid in the declaration, with a clause restrain

(a) See Stat. 1 Will. IV. c. 7, s. 7. See also Crossfield v. Stanley, Bart., 2 Barn. & Adol. 87.

D

ing execution to the correct sum, the object of which is that it may not be necessary to depart from the ordinary form in entering up the judgment. If the action be in debt, the cognovit is in a different form. If a cognovit contain any terms of agreement respecting an amount exceeding 201. it requires to be stamped as an agreement with a 17. stamp. But though the sum confessed be more than 207., the cognovit will not require any stamp if it contain no terms of agreement. It may be sometimes an object to save the expense of the stamp, and where it is not necessary to insert any terms of agreement in the cognovit, or where the object in giving it is merely to obtain time, and the word of the plaintiff's attorney can be relied on, the clauses as to giving time, &c. may be omitted.

In the Appendix, sect. 6, the following forms of cognovit are given :

1. A cognovit in an action on promises, before declaration, where the costs are ascertained at the time.

2. A cognovit in an action on promises, after declaration, and before plea, where costs are to be taxed.

1

3. A cognovit in an action on promises after plea, the debt and costs being payable by instalments. 4. A cognovit in debt, applicable either before or after declaration.

5. A cognovit in debt after plea.

In actions on the case, covenant, and trespass, the forms of cognovit are the same as those in actions on promises, except that instead of the words "debt” or "real debt," the words " damages" or "admitted damages" should be used.

At the time the cognovit is signed, there must be present on behalf of the defendant signing it, some attorney of one of the superior Courts, who must be expressly named by such defendant, and must attend at his request, to inform him of the nature and effect of the cognovit before it is executed, and such attor