
    Ezekiel McWorter v. Samuel Reid.
    
      Tried before Mr. Justice Richardson, at Pickens — * Fall Term, 1838.
    
    An agont in “]i”e *fbr thoteStofan-Sky0 of iim ?“ofef lodged 'vithimn to serve.
    This action was brought against the defendant as sheriff of Pickens district, for an escape. A bail process, Ezekiel McWhorter, bearer, vs. Eli Suttee, been lodged with the present defendant, as sher-on which he had arrested the defendant in that Pase, and afterwards permitted him to escape. The order for bail was indorsed on the writ in these words: {{^6 s¡lerjfp js ordered to take good and substantial bail,” but was not signed by any one. The affidavit to hold to bail, was made by Ezekiel McWhorter, as the agent of Thomas Fullerton, who swore that the defendant Suttee, was indebted to Fullerton. The presiding Judge nonsuited the plaintiff on the ground, that the affidavit was insufficient, and that therefore the order to take bail was a nullity. The plaintiff now moves to set aside the nonsuit.
    Burt» for the motion.
   Harper, J.

According to the English practice, as I understand from the case of Hussey v. Baskerville, cited in Recks v. Groneman, 2 Wils. 225, the affidavit is not annexed to the writ, but filed in the proper office ; the sum sworn to, being 'indorsed on the writ. Of course the sheriff has nothing to do with the affidavit, in respect of judging of its sufficiency. If there be no affidavit, or if the affidavit be defective, the remedy is, that the defendant will■ be discharged on common bail. ,

Our act of 1789, P. L. 278, directs the affidavit to be annexed to the writ. For" what purpose this direction is given, the act does not explain. It may be, that the defendant should be apprized of the nature of the demand against him. If the sum sworn to and the order for bail were endorsed on the writ, I should greatly doubt whether the sheriff would not be bound to execute the order, though no affidavit were annexed. The well known rule is, that the sheriff is bound to execute his process; not to judge of its regularity. Could not the sheriff justify the arrést under such process ? If the order be illegally made, the attorney who made it, or the clerk who signed the writ, may be responsible.

But in the present case, I think there is no doubt The plaintiff swears, as agent of Fullerton, that defendant is indebted to Fullerton forty dollars, besides interest, by note of hand. The process shows that he sues on a note of the same amount, payable to, Fullerton, or bearér. The obvious inference is, that he sues as agent and bearer, for the use of Fullerton. If an indorsement were made on the process that the suit is for the use of Fullerton, could there he any question ? This, at the utmost, was a mere irregularity, of which the sheriff had no right to constitute himself the judge.

The Motion is granted,

O’Neall, J. concurred.  