Gilmore v. Lidden

By the Court. —

Lumpkin, J.

delivering the opinion.

[1.] After judgment has gone against the principal, can the bail, when sought to be charged by scire facias with the debt, object that the bail is excessive; that the sum sworn to is double the amount claimed in the declaration?

Without having entire confidence in the point, we are inclined to think that the objection comes too late. Excessive bail oppresses the debtor; he may not be able to give it. Hence his right to except. But what is it to the bail ? He is under no compulsion to become bondsman. His undertaking is optional. No more than the actual debt can be recovered against him, whatever sum may be sworn to ; and if, under these circumstances, the principal acquiesces, why should he complain at the eleventh hour ?

[2.] As to the service, we think it was sufficient. The Sheriff returned that he served the defendant. The bail is the only defendant proper upon the scire facias. The bail, in response to the writ, appears and defends.

Judgment affirmed.