
    CAMDEN DISTRICT,
    FALL TERM,
    1795.
    Alexander v. Winn.
    Under the act of 1785, scire facias lies against bail to the sheriff, after judgment against the principal, upon a return either of non est inventus, or nulla liona, to an execution against the latter, although he may have entered an appearance and pleaded to the action; nor is it necessary that the plaintiff should obtain an assignment of the bail bond from the sheriff. But the bail to the sheriff may, at any time before judgment in the original action, enter himself as special bail; and thereby discharge his liability as bail to the sheriff.
    •A bail bond is not void, although taken for a greater sum than is autho-. rizedby the affidavit; but the sheriff, is punishable if lie require excess sive bail,
    Scire Facias o.n a bail bond. The sheriff of Camden district had arrested one Cook, by virtue of a writ of capias ad respondendum,, at the suit of the plaintiff, and by virtue of an affidavit, annexed tp the said writ, had held him to .hail; on which occasion the present bond was taken. The scire facias was founded on the 10th section of the county court act of 1785, P. L. 369, which extends to the superior courts, and directs that where bail is given, and the defendant malves default, judgment rnay be had, and execution issued against the defendant; and if the sheriff returns non est inventus, or that the defendant has no effects, the plaintiff may sue forth a scire facias against the hail, and enter up judgment thereon, against such bail, and have execution as against the original defendant: Provided, that the common bail may enter himself special bail at any time before the judgment against his principal is signed.
    To the declaration on this scire facias the defendant demurred. And it was argued in support oí the demurrer, that the sheriff ought >o have been plaintiff in the action ; that the bail bond ought to have been assigned according to (lie statute, 4 An. c. IS, P. L. 90 ; that the act of 1785, relates to special bail, taken in court, and not to bail to the sheriff; and that the bond was taken for a greater sum than was sworn to, as appears by the affidavit to hold !o bail. Also, that in this case, the defendant ihad not made default, ¿o- that it appeared, that he had pleaded after lr, 'or ,rte„\ i a regular appearance; and the judgment against kirn wan ■ . u.t,vull.
    
   By the Court.

O» W:', ... The act of 1785, has materially

tijt} law ■> v sh/.d, in relation to this subject. As the law now stands, the bail to'the sheriff becomes responsible for the debt, which may be recovered by scire facias, unless he enter himself special bail some time before the judgment against his principal be signed. The bail bond may still be assigned, and action thereon supported, perhaps ; but it must be better to proceed by scire facias. The defendant has nv-tde default, for the defendant in the original action ought to have put in bail above; or the bail to the sheriff should have surrendered him. As to the bond being taken for a greater sum than the affidavit authorised, it does not avoid fhe bond. The bond, though taken for more, is good; though if for a much greater sum than is usual, the sheriff may be punishable.

Mathis, for plaintiff. Brown, for defendant.

The question on the last point was reserved for the opinion ofá full bench at Columbia, where it was discussed, and determined in December, 1795. The decision was conformable to the decision of the District Court. The following authorities relate to this point: 6 Mod.268. Lofft’s Rep. 545. 2 Str. 922. Doug. 330. 1 H. Bl. 76. 2 Bl. Rep. 816. 4 T. R. 570.

Quaere. If the scire facias should not have been- on the judgment,, and not on the bail bond.  