It is claimed on the part of the defendants, that because the plaintiffs declined to accept the bail, and the bail failed to justify, the defendants ceased to be bail, and cannot be prosecuted as such, and this is the view taken of the case by the court below.
Section 187 of the Code provides for giving the bail. Section 192, requires the sheriff to deliver a copy of the undertaking to the plaintiff, and the plaintiff must, within ten days thereafter, decline to accept the bail, or he will be deemed to have accepted it, and the sheriff will be exonerated. *Page 106 Section 193 provides for the justification of bail; and section 201 provides, that if the bail do not justify, the sheriff shall be liable as bail; and section 203 provides, that if the bail do not justify, they shall be liable to the sheriff, by action, for damages which he may sustain by reason of such omission.
There is nothing in any of these provisions indicating that the bail are to remain liable, as such, in case they fail to justify. In that event, it is specially provided that the sheriff becomes bail, and is liable to the same extent precisely as if he had himself signed the undertaking as bail. And while he is liable as bail he has all the privileges of bail, and can arrest and surrender his principal. (Buckman v. Carnly, 9 How. Pr. R., 180; Sartos v. Marceques, id., 188; McGregory v. Willett, 17 How. Pr. R., 440.)
It cannot be inferred that it was the intention of the legislature that in such a case the persons who have signed the undertaking and the sheriff shall both remain liable as bail, and that thus the plaintiff should have double bail; nor that it was the intention that both should have remedies as bail against the principal.
After the bail given have been objected to and have failed to justify, they are no more liable than if a new undertaking had been given with other bail. If a new undertaking is given, it takes the place of the former; and if no new undertaking is given, the law holds the sheriff, and his liability is taken in the place of the undertaking.
Complete provision is made in the law for the emergency. The sheriff takes the bail in the first instance upon his own responsibility, and then if they are objected to and fail to justify he is held as bail; but the law allows him to sue the bail for the damages which he may sustain by reason of their failure to justify. In such suit the bail are not liable to the sheriff upon their undertaking, but because they gave it and have failed to justify, and have thus damnified the sheriff.
The plaintiff could have sued the sheriff; but in an action against the defendants they should at least allege in their *Page 107 complaint the damages which the sheriff sustained as bail, and that these damages were assigned to them.
I am therefore of the opinion that the complaint is insufficient, and that the judgment appealed from should be affirmed, with costs.
All concur for affirmance.
Judgment affirmed with costs.