
    ELLIS against ROBINSON.
    Bail bond in doable the sum, sworn to and indorsed on writ,- is good.
    This was an action on a bail bond. The sheriff had taken bail for double the sum sworn to in the affidavit. To the declaration on the bond, the defendant demurred, to which there was a joinder.
    
      
      L. H. Stockton,
    
    in support of the demurrer. The act authorizing sheriffs to take bail bonds, limits them [*] to the sum contained in the affidavit; the sheriff is directed by the act to take bail for the sum indorsed on the writ, and no more.
    
    
      Ewing, contra.
    It must have been on the adage, that every generation grows wiser and wiser, that the gentleman has brought in question, a practice that has prevailed for near a century. The English act has the same negative words, and no more; yet the practice has been to take the bonds in double the sum sworn to in the affidavit and indorsed on the writ. Our act is a copy from the English: and the practice under it has uniformly been, to take bonds in double the sum indorsed on the writ.
    
      L. H. Stockton, in reply,
    insisted on the express and positive words of the act; the act was imperative, and could not be departed from.
    
      
      
        Pat. 248.
      
    
    
      
       Our act in this respect is a copy of 12 Geo. I. chap. 29, section 2.
      
    
   Kirkpatrick, C. J.

Although the bond is taken in double the sum sworn to in the affidavit, and indorsed on the writ, yet this being considered as the penalty of the bond, the bond is to be considered as substantially taken for the sum indorsed on the writ, and on that ground the practice had obtained; he was therefore against the demurrer.

Rossell, J.

of the same opinion. [521]

Pennington, J.

There can be no use in changing a settled established practice, from which no evil has arisen. The court holds an equitable control over bail bond sidts; the sum sworn to in the affidavit, and indorsed on the writ, with the costs of suit, is what is recovered, and no more.

Demurrer overruled.  