
    Kinsler vs. Kyzer, et. al.
    In an action against the bail, on bail bond, the judgment against the principal constitutes the true measure of damages.
    The case of Bryce vs. Morton, was tried upon a writ of inquiry, where, if the plaintiff does not prove the extent of his damages, the jury may, at their discretion, give merely nominal damages. But the application of the rule, even to that case, is questionable.
    This was an action of debt on a bail. bond. -After-a ca. sa. had been issued, and after the Court to which the Writ in fhis case was returnable, the bail offered to surrender the principal.
    James, J. who heard the case, charged the jury that it was too late to surrender the principal and that the bail; were fixed, and that the measure of damages was. the. amount of the judgment and costs in the case against, the principal.
    The jury found for the plaintiff, the amount of the judgment- and costs against the principal.. .
    Butler, for the defendant,
    moved for- a new trial, on the ground of error in the charge of the judge. He cited the case of Bryce vs. Morton, 1 Nott and M’Cord, 65.
    
      M’Clintock and iff’C'ord, contra.
   Curia per

Johnson, J.

This Court concurs in opinion with the presiding Judge, that in an action against bail, the judgment against the principal constitutes the true measure of damages. — Murdon vs. Parman, 1 M’Cord, 138. The case of Bryce vs. Morton, 1 Nott and M’Cord 65, relied on by the counsel for the motion, does not sustain the position taken. Without saying more of that case, it will be sufficient to remark, that it was upon a writ of enquiry, in relation to which, as a general rule, when the plaintiff does not prove the extent of his damages, the jury may, in their discretion, give those that are merely nominal. Its application to that case may perhaps be. questionable; and that it is not to this, can admit of no doubt. This is an issue and the proof, so far as appears from the report, was plenary, and the jury was bound to find the verdict they did.

New trial refused.  