
    Laurens Sims v. Richard Tarrant, Sheriff, &c.
    Where a sheriff neglects to take hail, according to the exigency of the writ, he is not entitled to the benefit of the Act allowing the common hail an exemption from liability until a return of non est inventus on a ca. sa. against the principal.
    This was an action on the case, within the summary jurisdiction of the Court, tried before Mr. Justice Bicbabdson, at Pendleton, Pall Term, 1819, against the sheriff for not taking bail. The facts of the case were as follows :
    
      The plaintiff, Sims, had sued two defendants on two notes; and on his process was endorsed an order for bail, founded on an affidavit in the customary legal form. The sheriff’s return stated that he had served the process person-*1241 on one defendant, by delivering *him a copy, and had left a copy for J the other. The plaintiff in that action obtained a judgment against both defendants, and thereupon issued a fieri facias. Without any other proceedings in the original action, he commenced this process against the sheriff, for neglect of duty in not taking bail.
    The Court held, that the sheriff, not having taken bail, became himself bail, and was entitled to all the privileges of bail to the sheriff; one of which privileges being an exemption from process until a ca. sa'. should be issued and returned. The plaintiff was nonsuited. He therefore now moved the Constitutional Court to set aside this nonsuit, and for a new trial, on the ground : That the sheriff, in not taking bail, was a wrong-doer, and neglected his duty, and is not entitled to the privileges of bail.
    
      A. Bowie, for the motion. Whitfield, contra.
   The opinion of the Court was delivered by

Richabdson, «T.

The opinion of the Oourt is, that the sheriff is not entitled to the privileges of bail. The rule, which applies to this case, is a general one, that where a ministerial officer is required to do an act, and neglects to perform it, whereby an injury comes to any person, the individual injured has a right of action against the negligent officer. In this case, the sheriff having omitted to take the defendant, or require bail, though he may afterwards take the body before the return of the writ, and perhaps enter bail to the action even now; See Allingham v. Flower, (2 Bos. and Pul. 246 ;) Pariente v. Plumbtree, (Ib. 35 ;) yet, until doing so, he cannot have the privileges of bail, but is liable to the plaintiff’s action, which is immediately consequent upon the neglect.

The motion is, therefore, granted.

Coicock, Nott, Johnson and G-antt, JJ., concurred.

1 Strob. 303, and cases there cited.  