
    
      The President and Directors of the Bank of the State of South Carolina vs. Benjamin Green.
    
    Where a defendant has been arrested and held to bail, and judgment recovered against him, he cannot, in an action on the judgment, be again held to bail.
    The above rule applies, even though the bail bond in the original action was void; semble.
    
    
      Before Frost, J. at Chambers, Charleston, January, 1845.
    The report of the presiding Judge is as follows :
    “ This was a motion than an exoneretur be entered on the bail bond in this case. The action is debt to revive a judgment recovered between the same parties. It appeared by an exemplification, that in the original action the defendant was arrested and gave bail. The plaintiffs produced the bail bond taken in the original action, the condition of which is, to appear “ and answer the President and Directors of the Bank of the State of South.”
    “ In Barnes’ Notes, 116, it is' affirmed as established practice, “ that where the plaintiff has bail in the original action, he shall have none in his action on the judgment; where plaintiff has no bail in his original action, he shall have bail in his action on the judgment.” It is added, “ actions of debt on judgment are not to be encouraged ; after judgment execution should follow, and not a fresh suit.” Garth vs. Green, cited, p. 107, 1 Tidd. 186. Pe-tersdorff on Bail, 35, and Salkeld vs. Lands, 2 Bos. & Pul. 416. But it is argued for the plaintiffs, that the bond is void, because the condition does not certainly express the name of the plaintiffs, and does not express the cause of action at all; and so the plaintiffs never had bail in the first action. The argument appears to assume that the rule is designed to prevent the plaintiffs from requiring a second bail bond, or double security. But it is to prevent the defendant being twice harrassed by an arrest. For the rule prevails, though the bail in the original action have become insolvent; Sayer’s Rep. 160, cited 1 Tidd, 187 ; or the plaintiff has released them, by declaring in a different county; 2 Wils. 93 ; and if, upon arrest, the defendant confess judgment, “ that is tantamount to giving bail — and if defendant were held to bail again, he would suffer precisely the same vexation as in the common cases to which the rule was allowed to extend.” Salkeld vs. Lands. The deiendant having been arrested in the original action, is not liable to arrest in the present action. If the bond be inoperative as a security to the plaintiffs, through the sheriff’s default, the case does not differ from that in which the bail were insolvent when taken, or became so after-wards. For an insufficient bail bond the sheriff is liable. This seems the proper recourse of the plaintiffs, and not to hold the defendant to bail a second time.
    “ The motion is granted ; and it is ordered that an ex-oneretur be entered on the bail bond, and the defendant discharged from arrest.”
    From this order the plaintiffs appealed, and moved that the same be reversed, on the grounds,
    1. That the bail bond taken in the first action is void upon its face, inasmuch as it neither sets forth the names of the plaintiffs, nor states for what the defendant was called upon to answer to them; and, therefore, no action could be maintained upon the bail bond, but the bail is wholly ineffectual; and it is respectfully submitted, that it is not the mere arrest, but the being effectually held to bail in the first action, that exempts the defendant from arrest in the second.
    2. That the English rule on the subject does not apply in South Carolina, unless bail above or to the action, has been put in, because the plaintiffs cannot compel the bail to justify; and by the Act of 1785, are deprived of all opportunity of testing the sufficiency of the bail, either by an action on the bail bond, or an action against the sheriff for taking insufficient bail, until the original suit has been prosecuted to judgment and execution. Wherefore, it is submitted that the reason of the English rule fails, and the rule itself must fail with it.
    3. That the order of his Honor is, in other respects, contrary to law and the practice of the courts.
    
      This case was argued in January Term, 1845,
    by Bailey, for the motion, and Ashby, contra,
    
   and was kept under consideration by the court until this term, when

Mr. Justice Frost

delivered the judgment of the court as follows :

The order of the circuit Judge in this case is confirmed, for the reasons given in the opinion, and the motion to reverse the order is dismissed.

Richardson, O’Neall, Evans, Butler and Ward-law, JJ. concurred.  