Alexander v. Winn , 3 S.C.L. 14 ( 1795 )

By the Court.

O» W:', ... The act of 1785, has materially

tijt} law ■> v sh/.d, in relation to this subject. As the law now stands, the bail to'the sheriff becomes responsible for the debt, which may be recovered by scire facias, unless he enter himself special bail some time before the judgment against his principal be signed. The bail bond may still be assigned, and action thereon supported, perhaps ; but it must be better to proceed by scire facias. The defendant has nv-tde default, for the defendant in the original action ought to have put in bail above; or the bail to the sheriff should have surrendered him. As to the bond being taken for a greater sum than the affidavit authorised, it does not avoid fhe bond. The bond, though taken for more, is good; though if for a much greater sum than is usual, the sheriff may be punishable.

Mathis, for plaintiff. Brown, for defendant.

The question on the last point was reserved for the opinion ofá full bench at Columbia, where it was discussed, and determined in December, 1795. The decision was conformable to the decision of the District Court. The following authorities relate to this point: 6 Mod.268. Lofft’s Rep. 545. 2 Str. 922. Doug. 330. 1 H. Bl. 76. 2 Bl. Rep. 816. 4 T. R. 570.

Quaere. If the scire facias should not have been- on the judgment,, and not on the bail bond.