
    EASTERN DISTRICT,
    MARCH TERM, 1828.
    
      M‘CALEP vs. MAXWELL.
    
    Appeal from the court of the third district,
    if the plain». tiff be indulge to perfect an irregalar service, the bail will not thereby be precluded “’⅛
   Martin, J.

delivered the opinion of the court. The defendant, sued as bail, urged that ° the plaintiff was not entitled to recover, because uo service of the petition and citation had been made in the Freneh language. There judgment against him, and he appealed.

The counsel for the appellee urges there was no irregularity in the service on the principal, and that, if there was, the bail cannot avail himself of ib

The record shews that the petition and cita» tion were served in the English language only that the principal pleaded this in abatement; and the court was of opinion that the service ought to be in the French language also, but that the plaintiff was still in time to complete the service, by supplying the defect by copies in that language. Judgment was given against the principal, and it does not appear that he appealed.

The time of service in the French language, bears the date of the 4th of September, 1824, and the bail bond that of the 13th of April preceding. ‘

All these proceedings took place before the promulgation of the Code of Practice, while* the law required service in the French lan-guoge- The indulgence granted by the court to the plaintiff, in giving him time to perfect the service, ought not to prejudice the bail, who, perhaps, signed the bond, merely because he saw that the plea in abatement would avail, and to afford to the defendant the opportunity of availing himself of the irregularity in the service.

The plaintiff, it is true, obtained from the court below time to perfect the service, but this (flight not to prejudice the bail, who had Hot the opportunity of resisting the application, and therefore must not suffer by it.

This case resembles that of Ryan vs. Bradley, Taylor 77, in which the superior court of South-Carolina held that the bail was discharged, the nature of the action having beert changed from debt to case. They held the bail could say with truth, non in hcea, fcedera temmus.

In the present case, the original defendant being arrested oft the service of a petition and citation, in a manner not supported by law» had the right of taking advantage of this, and could do so without going to jail. His friend Would willingly bail him, on being shewn that the suit must abate, on the illegality of the service being pleaded in abatement. If after-wards, the plaintiff, on discovering this, procured time to perfect the service, the bail ought not to suffer, and, without his consent, be compelled to stand bound for the appearance of die defendant, on a process to the service of which no objection could be made.

It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled, avoided, and reversed; and that our judgment be for the defendant, with costs . , i - in both courts.

Woodruff for the defendant.  