
    *Raynolds v. Gore.
    February, 1833.
    Bail — Insufficient—Waiver of Objection. — On a capias ad respondendum, on -which appearance bail is required, the sheriff takes insufficient bail, but the plaintiff proceeds against the bail, and recovers judgment against him as well as the principal, without objecting to the sufficiency of the bail, at the rules or in court, at or before the first term after the return day of the writ, or at any time pending the suit: Held, the plaintiff cannot af-terwards maintain an action against the sheriff for taking insufficient bail.
    Bail Bond- — Failure to Insert Name of Bail — Waiver of Objection. — A bail bond is executed bjr the principal and the bail, though the name of the bail is not inserted in the body of the bond (there being a blank left for his name) which, in other respects, is a regular bail bond, and the plaintiff proceeds on the bond and recovers judgment against the bail as well as principal, and this j udgment stands unreversed: Held,
    1. This is the bond of the ball, though his name is not inserted in the body of it; and,
    2. Same —Same —Same—Right to Action against Sheriff. — If it were a defective bond, the plaintiff having a judgment on the bond against the bail, could not maintain an action against the sheriff for returning a defective bail bond.
    Case in the circuit court of Frederick, by Jane Raynolds ' against Joshua Gore late sheriff of that county, for official negligence in executing process. The declaration alleged, that Raynolds having sued out a capias ad respondendum, in an action of assumpsit, against one Hooker, on which appearance bail was required by an order of a justice of the peace of Frederick, this process, with an order requiring bail, was put into the hands of one of Gore’s deputies to be executed, and Hooker was by him thereupon arrested ; and that the sheriff did not faithfully perform the duty imposed on him by the order requiring appearance bail. The negligence imputed to the sheriff, in the two material counts, was — 1. that the appearance bail he took, was insufficient; and 2. that he took an imperfect bail bond, not obligatory on the person whom he accepted as appearance bail, and so, in effect, failed to take bail at all. By reason whereof, though the plaintiff recovered judgment by default against Hooker and the appearance bail returned by the sheriff, she failed in recovering the amount adjudged to her against them. To' these two counts Gore pleaded the general issue. *At the trial, the plaintiff filed two bills of exceptions to instructions given by the court to the jury.
    1. The first stated, that the plaintiff gave in evidence the record of her action against Hooker, by which it appeared, that the sheriff returned upon her process against him, that he had executed the same, and that one Russell was the appearance bail; whereupon regular proceedings were had against Hooker, and Russell as his appearance bail; judgment by default was recovered against them for the damages assessed in a writ of inquiry, upon which a fieri facias was sued out against both jointly, and proved unavailing. But the plaintiff did not, at any time, during the pendency of her suit against Hooker, take any exceptions to the sufficiency of Russell as his appearance bail in that suit. Whereupon, the court, on the motion of Gore’s counsel, instructed the jury, that even if they should find that Russell was insufficient bail at the date of the bail bond, yet, as to that point, they should find for Gore, upon the issue joined upon the first count in the declaration above stated, because Raynolds, having failed to take exceptions to the sufficiency of Russell, as appearance bail for Hooker in her action against him, during the pendency thereof, within the time prescribed by the statute, could not now in this action against the sheriff, take advantage of the insufficiency of the appearance bail taken by him in the action against Hooker: to which opinion the plaintiff excepted.
    2. It appeared by the other bill of exceptions, that the name of Russell was not inserted in the body of the bail *bond taken and returned by the sheriff in Raynolds’s action against Hooker: the bail bond ran thus — ‘Know all men by these presents, that we W. Hooker and-are held and firmly bound unto Joshua Gore sheriff of Frederick” &c. But the bond was signed, sealed and delivered by Russell, and was a regular bail bond in all respects, except that Russell’s name was not inserted in the blank. Whereupon, the plaintiff’s counsel moved the court to instruct the jury, that this was not the bond of Russell, because his name no where appeared in the body of it, and that if it was not Russell’s bond, they ought to find for the plaintiff, in this action, on the issue joined on the second count above stated. But the court refused to give such instruction; and instructed the jury, on the contrary, that though Russell’s name did not appear in the body of the bond, yet not being excluded from it, and having been executed by him, it was his bond; and further, that, as the plaintiff in her action against Hooker, had proceeded on this bond as Russell’s bond, and recovered judgment against Hooker and Russell as his appearance bail, which judgment was still in full force, it was not competent to her, in this action, to call in question the validity and effect of the bail bond. To this opinion also the plaintiff excepted.
    There was a verdict and judgment for the defendant; from which the plaintiff appealed to this court.
    Nicholas argued, for the appellant, that, at common law, an action on the case lay against a sheriff for any default in the performance of his official duty, and, in particular, for neglecting to take bail when required, and of course, for taking insufficient bail; and that the proceeding against the sheriff given by the statute of Virginia, in case of insufficient appearance bail taken and returned by him, did not deprive the plaintiff of his common law remedy, if be chose to resort to it. As to the objection to the validity of the bail bond, because the name of the bail no where appeared in the body of it, he cited Harrison v. Tiernans, 4 Rand. *177, where it was held, that a bail bond blank as to the sum to be paid, was a mere nullity; and Smith v. Crooker, S Mass. Rep. 538.
    There was no counsel for the appellee.
    
      
      Statutory Bonds — Validity.—See monographic note on “Statutory Bonds” appended to Goolsby v. Strother, 21 Gratt. 107. The principal case is cited in Beery v. Homan, 8 Gratt. 52.
    
    
      
      1 Rev. Code, ch. 128. § 45, 46, p. 500. The statute, after providing-, th at if the appearance hail returned by the sheriff be objected to by the plaintiff, and be adjudged insufficient by the court, and the defendant shall fail to give special bail, the sheriff shall thereupon be considered a party to the proceedings, and together with the appearance bail, shall be subject to the same judgment and recovery as the appearance bail alone would have been subj ect to,— provides, further, that “objections to the sufficiency of appearance bail shall be taken either at the rules, or in court, at or before the first term after the return day of the writ, and not thereafter: they shall be decided by the court without delay, and the burden of proof shall lie on the party affirming the sufficiency.” — Note in Original Edition.
    
   PER CURIAM.

There is no error in the directions given by the circuit court to the jury. Judgment affirmed.  