ment of the costs of one action only; bail above having been put in and justified, A bail-bond is not to be Comyn now shewed cause. distinguished from any other joint and several bond, where the obligor has a right to sue all the parties separately. The statute 4 & 5 Anne, c. 16. s. 20., enables the assignee of the bond to sue, whereas, at common law, the sheriff only could put it in suit. The act certainly enabled the Court to give such relief to the defendant and to the bail as was consistent with justice and reason. The invariable practice, since the passing of that act, where several actions have been brought, is, to stay the proceedings, upon payment of the costs, in all the actions; and this practice of bringing several actions has been the subject of great complaint, and has frequently been reprobated by the Court; but no application of this sort has ever yet been made, and that of itself affords the strongest argument against it. E. Lawes, contrà. The statute of Anne enables the Court to give to the bail such relief as is consistent with reason and justice. It is most consistent with reason and justice, that they should be relieved from the costs of three actions, where no reason can be assigned for bringing more than one. Cases may occur, where, perhaps, several actions would be proper, but no necessity is suggested for such a proceeding here; and, as the debt might have been recovered in one action, it is inconsistent with reason and justice, that the bail should be subjected to the costs of three. ABBOTT C. J. This act of parliament has now been in force for more than a century, and in the course of that Rr 2 1819. KEY against HILL 1819. KEY against HILL. that time, it has very often occurred to this Court, to express its most marked disapprobation of the practice of bringing several actions upon the bail-bond given to the sheriff. But no instance can be found in which the Court has, on such an occasion, stayed the proceedings, on payment of the costs, in one of those actions only. The act seems, undoubtedly, to have contemplated only one action, for the words are," that the sheriff shall assign to the plaintiff the bail-bond, or other security taken from such bail, by indorsing the same, and attesting it under his hand and seal. And that if the said bail-bond or assignment, or other security taken for bail, be forfeited, the plaintiff, after such assignment made, may bring an action and suit thereupon in his own name." But I think, that by these words, a plaintiff is not to be confined to one action only; for there may be cases, where it may be very reasonable, that more than one action should be brought upon the bail-bond; as where the plaintiff has brought an action against one only, and that one becomes unable to pay, it would be unreasonable to say, that he should not then proceed against one of the others. So that it appears to me, that under this part of the statute, it is competent for such plaintiff to bring more actions than one. The act then goes on to state, that the Court where the action is brought may, by rule of Court, give such relief to the plaintiff and defendant in the original action, and to the bail upon the bond, as is agreeable to justice and reason; and that such rule of Court shall have the nature and effect of a defeazance to such bail-bond. Now it seems to me, that the meaning of this is, that the Court is to give such relief against the forfeiture of the bond as is rea sonable. sonable. Where, for instance, bail above, though not put in and perfected in due time, have, notwithstanding, been put in and perfected within a few days after, it is consonant to justice and reason, that the party should be relieved from the forfeiture of the bond. This view of the statute appears to be corroborated by what follows; for the rule of Court is to have the nature and effect of a defeazance to the bond, which shews that the relief before spoken of is a relief against the forfeiture of the bond. But I do not think that this extends so far as to give the Court the power to relieve the party applying, against the costs which have been incurred by the plaintiff in bringing more than one action. The question is now agitated before the Court for the first time, and they are now called upon to pronounce their judgment on the words of this statute. I do not feel myself at liberty to say, that the Court can deprive the plaintiff of his costs, although I am sorry, under the circumstances of this case, to come to such a conclusion. No such construction as that now contended for, was originally put upon this act of parliament; and I cannot think, therefore, considering how often the subject has been before the Court, that it could have escaped notice, if it had been the correct one. I think, therefore, that this rule should be discharged. BAYLEY J. The practice which has been pursued in this case, of bringing many actions on one bail-bond, is certainly most oppressive, and, if the Court are unable to grant relief under this statute, it calls most imperiously for the interference of the legislature. The fact of the oppression in this particular instance does not furnish Rr 3 1819. KEY against HILL, 1819, KEY against HILL. furnish of itself any ground on which the Court HOLROYD HOLROYD J. The only doubt which I have had in this case is, whether we are precluded, by the practice which has prevailed so long, from relieving this party under the clause in question, on payment of the costs in one action only. The usage has certainly been for parties to obtain relief on payment of all the costs which have been incurred. Had that practice been sanctioned by any decided case, I should have held myself bound by it, and thought that the only mode which the Court could adopt would have been to have prevented this practice by a prospective rule; and my doubt has been, whether that was not the better course to adopt on the present occasion. But on the best consideration which I can give to the subject, I think that as there has been no express decision on the point, although the practice has been to the contrary, we are still at liberty to grant such relief under this act of parliament as justice and reason require. And, as it appears in this case that several actions were not necessary, and no reason has been assigned why more than one was brought, I think we may, consistently with justice and reason, stay the proceedings on payment of costs in one action only. BEST J. If there had been a settled practice on this subject, I should have felt myself bound by it; but on enquiry, it appears that, as yet, there is no judicial decision pronounced on the subject. The practice, therefore, which has prevailed, has never yet been sanctioned by the Court. It certainly is an abominable practice, and we are now called upon, for the first time, to say, whether we will assent to it. The words of the act of parliament are "that the Court may give such relief Rr 4 as 1819. KEY against HILL |