
    Daniel Rayner versus Shubael Bell.
    An action will lie against an officer who has taken insufficient bail, without any previous proceedings against the bail.
    Case against the defendant, for having taken insufficient bail, in an action instituted by the plaintiff against one Clark. At the triai before Parker, C. J., it was in evidence that Bell had arrested Clark, and taken one surety only on the bail bond. He returned on the original writ that he had taken bail, and on the execution, which issued on the judgment, he returned non est inventus.
    
    The defendant objected to the proof of the insufficiency of the bail by witnesses, on the ground that it should be * shown by an effectual proceeding against the surety on scire facias. There had been, in fact, no proceedings against the bail, who had left the commonwealth, and was consid ered insolvent.
    A verdict was taken for the plaintiff by consent, to be set aside, and a nonsuit entered, if the Court should be of opinion that the plaintiff could not support the action ; otherwise, judgment was to be rendered on the verdict.
    
      Leland for the plaintiff.
    
      I). A. Simmons for the defendant.
   By the Court.

This case is settled by the case of Young vs. Hosmer, 11 Mass. Rep. 89. There seems to be no reason for requiring a creditor first to prosecute a fruitless suit against the bail; thus increasing the final expense to the officer. If he has taken insufficient bail, the wrong is then done, and the right of action accrues, Judgment on the verdict. 
      
      
         Mather vs. Green, 17 Mass. Rep. 60.
     