The defendant at this term relinquished his pleas and confessed a judgment (a)
William Osborn vs. William Jones.
This was an action on a bail bond, (See 1 Harr. Ent. 550, and 2 Harr. Ent. 449, for the declaration and pleadings) by which it appears that the defendant pleaded three pleas, 1st, Comperuit ad diem; 2d. An offer to surrender the principal; and 3d. That an action for the same cause was 'brought in the county" court. The plaintiff replied nul tiel record to the first plea, and demurred to the others ■ — the first and last pleas were with drawn.
The demurrer to the second plea was argued by Cooke and Pinkney for the plaintiff, and by A. Hall and Key for the defendant, before S. Chase, Ch, J. Goldsborough and J. T. Chase, J. at October term, 1792.
S. Chase, Ch. J. If a.ny one is arrested in a case that is bailable, the sheriff is obliged by the statute of 23 Henry 6, c. 9, (1444) to take a bail bond, and he must take reasonable bail if tendered, or an action lies against him 1'or his refusal.
The sheriff is the judge of the security, and he may take one or more.
The bond is for the. indemnification of the sheriff, and for the benefit of the prisoner. The plaintiff is no ways interested in the bond until the forfeiture.
If the sheriff neglects to take a bail bond upon default of the defendant's' appearance, at the return of the writ, he is liable to an action for an escape. If he takes a hail bond he is not liable to such action.
If the sheriff takes a bail bond the prisoner is thereupon discharged from the arrest, and he is in the custody of his bail, who may keep him in custody. Dalton’s off. Sh. 517.
The sheriff in Great Britain is not limitted to any sum in which he is to take a bail bond, he is to judge of it.
By the act of 1715, ch. 46, s. 3. In an action on the ease whei’e the damages laid are above 4Q001bs. of tobacco, if no declaration sent with the writ, the sheriff shall not require bail bond exceeding SOOülbs. of ■tobacco, though damages be marked on the writ for a greater sjim.
On return’ of the writ, and default of l‘be defendant to appear, or give special bail, the plaintiff has his election either to accept an assignment of the bail bond from the sheriff, (which he is obliged to make by the statute of 4 and 5 Ann, ch, 16, s. 20) or proceed against the sheriff by amerciament. The plaintiff is not obliged to take an assignment of the bail bond if the security is ever so good.
Ip an action on a bail bond forfeited, the bail can only plead comperuit ad diem. This is the only lawful condition. 5 Burr. 2683, Harrison vs Davies. 1 Crompt. 76.
If on suing the bail bond the prisoner is out of custody of the sheriff, I conceive he can never be agaiii in his custody in virtue of the *6mesne process in that action; and the sheriff would he liable to false imprisonment if he was to take him against his consent; and I apprehend that against his consent he cannot be surrendered to the sheriff by his bail, but they may keep him, and surrender him in court. The special bail may surrender the principal in court at any time admitted by the court, during the sitting of the court to which the scire facias is returned scire jeci, or during the sitting of the court to which the second scire facias is returned Nihil. 2 Crompt. 81, 82.
There is a difference between manucaptors, (which are that the party shall appear at the day) and bail. 3 Vin. tit. Bail, 493, pl. 11. cites Godb. 339. The defendant gave a bail bond to the sheriff, and before the day he rendered himself to the marshall, and held a good bar to the action on the bail bond. 3 Vin. Ab. 494, pl. 13, in margin., cites 2 Lilly’s Prac. Reg. 254.
The court gavejudgment upon the demurrer for the plaintiff.