By the Court.
Lumpkin, J.,delivering the opiniou.
Both parties complain in this case; and by consent, the errors alleged by each have been heard.
Was the court right in overruling the exceptions which were taken to the bail bond — namely, that it did not recite the term of the court to which the action was returnable in which it ivas taken? The description is, “ a civil process requiring bail at the instance of J. J. Heboard against the said William T. Brooks, in an action of complaint, &c., returnable to the superior court to be held on the third Monday in April next, and which has been served on the said William T. Brooks.” Wc find in the record and in point of fact, an action in the superior court of Oglethorpe county, where this bond, from its caption, appears to have been taken, answering precisely to the recitals in the bond, and none is shown to be pending between those parties anywhere else. Is not the question of identity prima facie, at least satisfactorily made out? To my mind, such an objection is both technical and frivolous at this day. Hoes any one doubt that Thos. *365Amis knew where and when ho was bound to see to it — - Brooks, his principal, paid this debt or rendered his body to prison in execution of the same? "Why does he pretend ignoranc then of his obligation in this respect? The period for such trilling is past.
2. The judgment was rendered in this case 28th of October, 1857, and the capias did not issue till the 2d November, 1857; and the presiding judge charged the jury, that by reason of this delay, the bail was discharged, ¥e do not think so.
The clerk’s testimony proves, that there was no unreasonable delay in issuing this process; and it is a mere question of diligence. The bail did not call for the ca. sa. within the five days. It ¡was issued by the clerk in its order, in making out the execution docket. It was entitled by law to no special preference.
The decision of this case is attempted to be sustained by the ruling of this court in Lichten & Baker vs. Mott, (10 Ga. Rep. 138,) where it was held that for the purpose of fixing the liability cf the bail, the ca. sa. against the principal, should be retained in the hands of the sheriff, until the next term of the court, to which it was by law returnable. It is said that the court there maintained that the process must remain in the hands of the officer the whole time between the judgment and the return term. We did say, that during the time that intervenes between the test and return of the ca. sa., it must remain in the officer’s hand, to be executed if practicable. There is no pretence that that was not done here. The test of the capias was the 2d November, and not the 28th October, 1857 ; and we repeat the only question in this case is, did the ca. sa. issue within a reasonable time. The case in 10th Georgia, does not raise or decide the point made here.
Judgment .reversed.