case bishop vers brook in c b upon non be factum plead to a bailbond the  defendant admit all other matter against he and depend upon that for his  defence Com dig p this be a action of debt upon a bail bind give by the  defendant to the sheriff of London for the appearance of Burgundy Evans at the  suit of the plaintiff and which upon the forfeiture be assign by the sheriff  to the plaintiff accord to the statute of Ann c saint Ann c S a and the  plaintiff in his declaration declare that the defendant by obligation to go  away see tender c to the sheriff sub coned quod si pillage Humph Evans  comparea c quod indeed script obl captain to be army stat h c army short  catalog de cap ad respond quer c but do not say that Evans be arrest by force  of the say writ the defendant plead non be factum and after a verdict for the  plaintiff it be move in arrest of judgement that by the stat whether it be say  if any person shall be arrest after the first day of Trin term by any writ c  out of a of her majesty court of record at Westminster at the suit any common  person and the sheriff take bail from such person c the sheriff at the request  and cost of the plaintiff shall assign to he the bailbond c and therefore it  ought to appear that the defendant be arrest otherwise the sheriff have no  authority to assign the bailbond for by commonlaw it be not assignable be only  a choose in action and therefore when the statute enable it to be assign if  any person be arrest c it ought to appear by the declaration that he be arrest  otherwise the action fail and this shall not be aid by a verdict upon non be  factum because comens this matter can not be try upon such a issue to this I  answer that the intent of the statute whether be that all bailbond in personal  action shall be assignable and by the statute h c the sheriff have authority  to take bail of all person by they arrest or be in their custody by force of  any writ bill or warranty in any personal action or by cause of indictment of  trespass and the statute whether do not mean that bailbond take upon a capias  on indictment shall be assignable yet all the bind take of bail in personal  action be intend to be assignable but by the statute h the sheriff have no  power to take bail but of person arrest by they or in their custody that be in  arrest by their predecessor and therefore the declaration which say that the  bailbond be take by force of the stat h and which be upon a capias against  Evans at the suit of the plaintiff import that Evans be arrest by the sheriff  at the suit of the plaintiff for otherwise he can not take a bailbond for his  appearance by force of that statute and therefore there the averment that he  be arrest be sufficient upon demurrer perhaps it may be make dubious but here  after non be fact plead the defendant have admit all other matter against he  and depend upon this for his defence if the defendant have plead nil debet it  ought to be plain prove on the trial that the defendant give the bailbond that  Evans be arrest upon a capias against he upon which such bailbond be give to  the sheriff and afterward assign to the plaintiff and upon this declaration  such proof be necessary and therefore upon comens er p nil debet plead after a  verdict for the plaintiff he shall have his judgement for the imperfection of  the declaration be aid by the verdict because the arrest must be prove so for  the same reason when the defendant waive the general issue nil debet upon  which the special matter may be prove and rely upon this that the bind be not  his deed he allow all the other matter against he as in a action of covenant  if a breach be not well assign and the defendant plead non be factum he comens  admit a breach and after a verdict that it be his deed judgement shall go  against he cro Muscett versus ballett so in a action upon a bind with  condition to stand to a award though the plaintiff general ought to assign a  breach in his replication yet if the defendant after oyer plead non see puls  forth and that be find against he the plaintiff shall have judgement though no  breach appear resolve side keb S c a admit Lutw Yelv Brownl S c b so in a  action for a escape bring by a plaintiff durante minoritate h Stanhope if the  defendant plead a removal by habeas corpus and a commitment to the fleet and  that matter be traverse the defendant can afterward take a exception that the  plaintiff have not allege h Stanhope to be within year of age for he have  admit a authority in the plaintiff to sue Lutw raym cro car Yelv hob side c  there be a difference where the plaintiff by his declaration show something  which discover that he have no cause of action and where be only omit that  which be to maintain his action in the first case the declaration shall not be  aid by reason of the bar in the other case it shall after consideration the  court give judgement for the plaintiff for the defendant by his plea of non be  factum have rely upon this particular matter and this be find against he the  plaintiff shall have judgement