
    Mary A. Mosely, administratrix, plaintiff in error, vs. Emanuel Lyon et al., defendants in error.
    (Atlanta,
    January Term, 1873.)
    Pail Bond — Securities on Sheriff’s Bond — Liability.—Where, in October, 1858, the sheriff took an insufficient bail bond, and at the first term thereafter the plaintiff proceeded to have the sheriff and his securities on his official bond, declared by the judgment of the Court, special bail for the defendant, and having obtained judgment for his debt, he proceeded by scire facias to make the sheriff and his securities liable as bail, but failing in this, in consequence of a plea that the defendant' was dead, he appealed and dismissed the scire facias, and in June, 1866, commenced suit on the sheriff’s official bond for failure to take bail:
    Held, That having elected to. hold the sheriff and his securities liable as bail, the plaintiff is concluded by the remedy he has chosen, and cannot now resort to the official bond of the sheriff.
    Bail. Sheriff’s bond. Before T. W. Alexander, an attorney at law, presiding by consent. Floyd Superior Court. July Term, 1872.
    Mary A. Mosely, as administratrix cum testamento annexo upon the estate of Benjamin T. Mosely, deceased, brought debt against Emanuel Ly.on, late sheriff of Floyd county, and his securities on his official bond, executed on February 16th, 1858, for $10,000 00, alleging that said indebtedness accrued to the plaintiff on account of the defective execution by said Lyon of a bail process sued out against one Charles *Ross, during the pendency of a suit in the Superior Court of Polk county, in favor of said Benjamin T. Mosely, deceased, against said Ross.
    The defendants pleaded as follows: 1st. Nil debent. 2d. That plaintiff, by order of the Superior Court of Polk county, caused these defendants to be made special bail for the said Charles Ross, who is now dead, so that these defendants cannot deliver him up, in discharge of their liability as his special bail, that they are therefore discharged from any legal obligation to the plaintiff. 3d. That Charles Ross is wholly insolvent, and no collection could be made from him by law; that nothing that was done or omitted to be done by the defendant, Emanuel Lyon, has caused, or can cause any loss or injury to said plaintiff ; that if said 'Ross were now in life, and these defendants were to deliver him up, the said plaintiff could not be benefited thereby.
    Plaintiff demurred to the second and third pleas. The demurrer was overruled, and the plaintiff excepted.
    • The evidence made the following case: On September 6th, 1858, Benjamin T. Mosely commenced suit to the next term of Polk Superior Court, against Charles Ross, on a joint and several note for $3,511 75, dated January 29tfi, 1857, due December 25th, next thereafter, signed by Charles Ross and Jonas King. On August 8th, 1866, judgment was entered in said suit for $3,300 00, principal debt, and $1,991 21, interest. On October 23d, 1858, bail process was sued out, pendente lite, against said Ross, the sum sworn to being $3,511 75, besides interest.- On the process was the entry of the sheriff to the effect that he had arrested the defendant and taken bond according to law. The bond taken was signed by said Ross and Benjamin F. Bigelow as security, payable to said Bigelow, in. the sum of $7,030 00. At the October term, 1858, an order was taken directing that Emanuel Lyon and his securities shall be deemed and held special bail of the said Charles Ross; first, because the surety on the bail bond is in insolvent circumstances; secondly, because said bond is made payable to the said Benjamin F. Bigelow; thirdly, because the bond *is taken in a sum more than double the amount sworn to, and in a sum different from that indorsed on the back of the bail'process.
    
      Ca¡ sa. issued upon the aforesaid judgment, and a return of non est inventus was made on January 28th, 1867.
    In October, 1859, Charles Ross -was in Baltimore, on the eve of departing to the coast of Africa for the purpose of purchasing slaves. He had not been heard from since and was supposed to be dead. He left a wife and four children in Cedartown. His health had been very bad.
    The scire facias sued out against Lyon and his securities was dismissed by the plaintiff before the commencement of this suit.
    The evidence as to the solvency of Ross in 1868 was conflicting.
    The testimony being closed, counsel for plaintiff stated to the Court that if it entertained the same opinion as was expressed in overruling the' demurrer to the second and third pleas of defendant, it was unnecessary to argue the case to the jury. The Court stated that it would charge the jury, “that if they should believe from the evidence that the facts stated in the second and third pleas were true, they would have to find for the defendant; that if, on the motion of plaintiff’s testator, then in life, defendants had been, by order of Court, made special bail, that defendants from that time were liable only as special bail for the said neglect of duty of the sheriff, and if Ross was dead, their liability as special bail ceased, and they could not be made liable by suit on the sheriff’s bond for the same omission Oof duty for which they were made special bail.”
    In order that the case might be presented to the Supreme Court for review, upon the points aforesaid, the Court instructed the jury to return a verdict for the defendants, which they accordingly did.
    Plaintiff excepted to the ruling of the Court upon the demurrer to the second and third pleas, and to the proposed charge, and now assigns the same as error.
    *E. N. Broyles; A. R. Wright, for plaintiff in error.
    Warren Akin, for defendants.
   McCay, Judge.

This case presents a new question, but one which we think is a very plain one. The Judiciary Act of 1799, section 14, provides that “if the sheriff or other officer shall fail or neglect to take such bail, or the bail taken shall be deemed insufficient by the Court, on exceptions taken thereto and entry thereof made at the first'term to which the said petition and process shall be returned, such sheriff or other officer and his and their securities in either of the cases shall be deemed and stand as special bail, and the plaintiff may proceed to judgment according to the provisions of this Act hereinafter mentioned.”

In the case at bar, the plaintiff objected to the bail, the Court held the bail insufficient, and passed an order directing the sheriff and his securities to stand as special bail. The plaintiff proceeded to judgment, undertook to get a judgment final on the recognizance, and abandoned it, and now proposes to recover on the official bond for his damages.

■ We think he is concluded by his own selection to hold the sheriff liable as bail. Pie got by that order of the Court all his process sought, all the sheriff failed to furnish him, to-wit: a good bail bond. Pie got it, too, and accepted it of his own choice. It was not forced upon him. It was, too, a heavier obligation than exists by the official bond. The latter only holds the sheriff to the damages; the bail bond bound the sheriff to produce the body, and if he failed to do that, (the defendant living,) the sheriff was liable for the debt, and this though the defendant was insolvent and the damages, therefore, nothing. The bail bond, too, was a recognizance, a debt of record, and of higher dignity than even the official bond. At the first term of the Court after the failure of duty upon the part of the sheriff, the plaintiff had his choice of remedies. *PIe had then the right to say, “The sheriff has damaged me. I will sue his official bond and recover for the wrong.” Pie had, however, another right. He had the right to say damage or no damage. “I have a right to my bail; that was my demand, that the sheriff has failed to give me, and I insist upon the letter of my right.” This plaintiff took the latter course: He demanded and he got the bail he sought for. When the sheriff and his securities became the bail, the plaintiff had exactly the demands of -his process. What has he to complain of? He asked for bail and he got bail. We think the Judge was right.

Judgment affirmed.  