
    Matthison, Sheriff, &c. against Forbus, impleaded with Kern.
    Where a she-served with an not bringing fin defendant,'pu * oPcoa’C pm6 cures a person to put in special bail, (on his promise of indemnity,) in he6cannotmainon“ the abai" there’ being^an cording To ’ the bail-bond °f the defendant may plead comperuit ad diem, ¡prout
    
    on being attachment, he debt'añdTosts suit,Tvfth^'the tachmenth6and then bring his action on the bail-bond, or against the defendant, for so paid. m°“ey
    THIS was an action of debt brought on a bail-bond given to the plaintiff, as sheriff of the county of Madison, on a writ , against Kern, in favour of Jehiel Tuttle, in the Court of Common Pleas. The cause was removed by habeas corPus into this Court. The declaration was in the usual form, The defendant pleaded non est factum, and comperuit ad r J 7. . f diem, prout patét per recordum. The plaintiff replied to the , . 1 second plea, stating the issuing of the writ, the arrest of K., the execution of the bail-bond, the return of the writ, cepi corpus, &c.; that K. failed to appear, &c; that a rule of Court was served on the plaintiff to bring in the body of AT. in twenty days, or show cause why an attachment should not issue against him ; that K. refused to appear and put in special bail: that an attachment was issued against the r ' ° plaintiff, who was arrested thereon, and, in order to stay the proceedings on the attachment, he procured Pardon Barnard to become special bail, and justify, in the original action, and paid the costs of the attachment. The defendant rejoined, denying that any such proceedings were had, as ¡n the replication, and that the plaintiff had not been damnified, &c. To this rejoinder there was special demur-t v rer and joinder. The general issue was tried at the Madison ° ® circuit, m June, 1821, before Mr. Justice Van JYess.
    
    At the trial, the execution of the bail-bond was admitted; and the plaintiff proved the proceedings as stated in his replication ; a judgment in the original cause, a fi.fa. against K., returned nulla bona, aca. sa. against AT., returned non est inventus, and a capias against P. Barnard, the special bail, returned cepi corpus, by which, according to the rules of the Court, he became fixed as bail. The plaintiff proved the amount of the original debt to Tuttle, which, with interest and costs, amounted to 159 dollars and 85 cents. The defendant’s counsel objected, K That as special bail had been put in, in the original action, by the plaintiff’s own showing, he could not maintain the action; 2. That the plaintiff had not paid the original debt to Tuttle, and if he had, he could not be entitled to recover interest on the judgment. The Judge reserved the points, and a verdict was found for the plaintiff, under his direction, for 159 dollars and 85 cents, subject to the opinion of the Court on a case, containing the facts above stated, which was submitted to the Court without argument.
   Spencer, Ch. J.

delivered the opinion of the Court. The defendant must have judgment. The plaintiff’s attorney has mistaken the practice of the Court. The plaintiff ought not to have put in bail$ but should have paid the debt and costs of the action, and of the proceedings on the attachment, and then sued on the báíl bond. (1 Tidd’s Pr. 262.) The defendant in the original action has appeared to that suit, by putting in special bail, by Barnard. It is true, that the bail was given at the instance of the plaintiff; but that is immaterial ; it is an appearance according to the exigency of the bail bond; and on the plea of comperuit ad diem, as by the record, &c. there can be no inquiry who caused special bail to be filed. Whether the plaintiff can have a remedy against the defendant, after satisfying the original judgment, as for so much paid for the defendant, is not a matter of inquiry here ; but that, at all events, is his only remedy.

Judgment for the defendant.  