
    Friday Arthur ads. Manoel Antonio.
    If the principal die before the issuing of a era. sa., the bail is not liable;  nor in such, case can an action be maintained against the sheriff for not assigning the bail bond.
    Action on the case, for not assigning a bail bond; tried at Orangeburg, before Mr. Justice Colcock.
    It appeared on the trial below, that the attorney of the plaintiff, in the suit of Antonio v. Anderson, applied to the defendant, who had been the sheriff of Lexington district, when that suit was instituted, to assign to his client the bail bond, which had been taken of Anderson, which he refused to do. That upon this refusal this action was founded. On the part of the defendant, it appeared that the defendant, Anderson, died on the 17th November, 1813, a few days after the judgment was obtained against him, and, of course, before the bail was fixed.
    
    Upon this a verdict was given for the plaintiff.
    A motion was now made for a new trial.
    
      
      
         Calfe v. Dingley and Davis, 1 Jones’ Rep. 139. Tidd’s Prac. 243. Bacon Abr. Tit. Bail in civil actions. (D.) R.
      3 McC. 50; 2 Bail., 492; 4 Rich. 436.
    
   The opinion of the Court was delivered by

Colcock:, J.

A new trial has been moved for on several grounds; but as the first alone is deemed sufficient ground for a new trial, it is only necessary to remark on that, viz., because the defendant, Jesse Anderson, having died before the issuing of a ca. sa. against him, the bail cannot be liable ; and, therefore, the plaintiff sustained no *damage from the refusal to assigu the bail-bond. I am satisfied that the rule which I laid down below, as to the liability of public officers, was a mistaken one. The defendant (Friday Arthur,) bad a right to defend himself, on the ground that, the bail not being fixed, the plaintiff could not have sustained damages.

Stark, Solicitor, for the motion. Egan, contra.

I do not give my decided opinion on the evidence; but from what appeared, it seemed to me that the fact of the death of Anderson, on the 17th of November, 1813, was certain and if this be satisfactorily proved, and that the defendant did not sustain any damage by the refusal to assign the bail-bond, the plaintiff ought not to recover more than nominal damages, and the consideration of the circumstances by the jury was no doubt prevented by the rule which I laid down as to public officers. The motion is granted.

Nott, Chbves, Gantt and Johnson, JJ., concurred.  