
    GENERAL COURT,
    MAY TERM, 1797.
    Gorsuch, use of Telfair, vs. John Holmes.
    This was an action of debt upon a Bail Bond given to the plaintiff, then being sheriff of Baltimore county, by Andrew Holmes, with the defendant as his security, for the appearance of the said Andrew before Baltimore county court on the fourth Monday in March in the year 1793, to answer unto Isaac Telfair (for whose use this action is brought) in an action on the case. &c. The defendant pleaded payment, and issue was joined on the general replication, aud the cause continued to October term 1796; at which term the defendant by his counsel, moved « the court to stay the proceedings in this cause with all the costs of suit to the plaintiff, inasmuch as the said suit is instituted on a bail bond executed to the late sheriff of Baltimore county, conditioned for the appearance of a certain Andrew Holmes, at the then next ensuing Baltimore county court, to answer unto 
      Isaac, Telfair in a plea of trespass upon tbe case, and so forth; and also because there is a suit now depending in this court to recover from tile said Andrew Holmes the same claim on,account of which the said hail bond has been forfeited.”
    This motion, after argument by the counsel concern» ed, was overruled by the court..
    The defendant obtained leave and withdrew the plea of payment, and pleaded comperuit ad diem and comperuit ante diem. The plaintiff demurred to the first plea, and replied nul tiel record &c. to the other.
    Hollingsworth, for the plaintiff.
    
      Hobinson, for the defendant.
   The defendant at this term relinquished his pleas and confessed a judgment 
      
      
         William Osborn vs. William Jones.
      This was an action on a bail bond, (See 1 Harr. Ent. 550, and 2 Harr. Ent. 449, for the declaration and pleadings) by which it appears that the defendant pleaded three pleas, 1st, Comperuit ad diem; 2d. An offer to surrender the principal; and 3d. That an action for the same cause was 'brought in the county" court. The plaintiff replied nul tiel record to the first plea, and demurred to the others ■ — the first and last pleas were with drawn.
      The demurrer to the second plea was argued by Cooke and Pinkney for the plaintiff, and by A. Hall and Key for the defendant, before S. Chase, Ch, J. Goldsborough and J. T. Chase, J. at October term, 1792.
      S. Chase, Ch. J. If a.ny one is arrested in a case that is bailable, the sheriff is obliged by the statute of 23 Henry 6, c. 9, (1444) to take a bail bond, and he must take reasonable bail if tendered, or an action lies against him 1'or his refusal.
      The sheriff is the judge of the security, and he may take one or more.
      The bond is for the. indemnification of the sheriff, and for the benefit of the prisoner. The plaintiff is no ways interested in the bond until the forfeiture.
      If the sheriff neglects to take a bail bond upon default of the defendant's' appearance, at the return of the writ, he is liable to an action for an escape. If he takes a hail bond he is not liable to such action.
      If the sheriff takes a bail bond the prisoner is thereupon discharged from the arrest, and he is in the custody of his bail, who may keep him in custody. Dalton’s off. Sh. 517.
      The sheriff in Great Britain is not limitted to any sum in which he is to take a bail bond, he is to judge of it.
      By the act of 1715, ch. 46, s. 3. In an action on the ease whei’e the damages laid are above 4Q001bs. of tobacco, if no declaration sent with the writ, the sheriff shall not require bail bond exceeding SOOülbs. of ■tobacco, though damages be marked on the writ for a greater sjim.
      On return’ of the writ, and default of l‘be defendant to appear, or give special bail, the plaintiff has his election either to accept an assignment of the bail bond from the sheriff, (which he is obliged to make by the statute of 4 and 5 Ann, ch, 16, s. 20) or proceed against the sheriff by amerciament. The plaintiff is not obliged to take an assignment of the bail bond if the security is ever so good.
      Ip an action on a bail bond forfeited, the bail can only plead comperuit ad diem. This is the only lawful condition. 5 Burr. 2683, Harrison vs Davies. 1 Crompt. 76.
      If on suing the bail bond the prisoner is out of custody of the sheriff, I conceive he can never be agaiii in his custody in virtue of the mesne process in that action; and the sheriff would he liable to false imprisonment if he was to take him against his consent; and I apprehend that against his consent he cannot be surrendered to the sheriff by his bail, but they may keep him, and surrender him in court. The special bail may surrender the principal in court at any time admitted by the court, during the sitting of the court to which the scire facias is returned scire jeci, or during the sitting of the court to which the second scire facias is returned Nihil. 2 Crompt. 81, 82.
      There is a difference between manucaptors, (which are that the party shall appear at the day) and bail. 3 Vin. tit. Bail, 493, pl. 11. cites Godb. 339. The defendant gave a bail bond to the sheriff, and before the day he rendered himself to the marshall, and held a good bar to the action on the bail bond. 3 Vin. Ab. 494, pl. 13, in margin., cites 2 Lilly’s Prac. Reg. 254.
      The court gavejudgment upon the demurrer for the plaintiff.
     