By the Court
Jenkins, J.,delivering the opinion.
The Act of 1857, under which the bail process offered in evidence was sued out, is, by its terms, inapplicable to suits pending. It provides, that when a security, or endorser, shall file an affidavit, like that now tendered, it shall be the duty of the holder of the.note immediately “to commence suit,” and file the affidavit, etc.
Either it does not apply to the holder of a note who has already commenced suit on the note, or it requires him to institute a second suit. The latter proposition would seem to be so unreasonable as scarcely to require consideration. It is argued, that bail process may be as important to the security in a case pending, as when none had been instituted. It may truly be so, but that is an argument for the Legislature, not for this Court. Besides, if this view be erroneous, if the Act of 1857 authorizes a security, or endorser, to have bail process against the maker of a note, pending suit against him, the record before us shows that the defendant in error did all that, by a fair construction of the Act, could be required of him. He immediately filed the affidavit in the office of the Clerk of the Court in which this suit was pending. If any officer of the Court failed to discharge his duty after that, and by reason of such failure, plaintiff in error lost the benefit of the remedy, his recourse is upon such offi*181cer. This evidence could not, in any view of the case, have affected the rights of the defendant in error, and was, therefore, properly excluded.
Judgment affirmed.