
    *Aaron Valentine v. William S. Smith et al.
    When the plaintiff takes a rule upon the sheriff to bring in the body of the-defendant, he can not afterward take an assignment of the bail bond.
    Reserved in the county of Hamilton.
    This is a writ of certiorari, to reverse an order of the court of common pleas of Hamilton county, staying the proceedings in an action, of debt brought by the plaintiff against the defendants, as the appearance bail of ¥m. S. Smith, on a bail bond executed to the sheriff and assigned to the plaintiff.
    The facts are stated in the bill of exceptions. They are these: The original suit was commenced by capias on April 20, 1832, returnable to the August term following. The defendant was arrested, and on the 28th of May, with Lovell and Williams, as sureties, gave the bond in question. On the 25th of September, it being of the August term, the plaintiff obtained a rule on the sheriff to bring in the body of Smith, in three days, and filed a declaration de bene esse in the original action.
    The rule on the sheriff was not served, and after it was entered there was an understanding between the attorney for the plaintiff and the sheriff that it was waived, but no entry of such waiver was made on the journal.
    On June 29, 1833, the plaintiff took an assignment of the bail bond, and commenced a suit against the bail; and, at the appearance term, the court ordered the proceedings to be stayed, on filing special bail in the original action, and paying the costs in the suit against the bail. In this last suit, the plaintiff, on January 8, 1835, filed a declaration. In April following, special bail having been given in the original action, and the costs paid in the suit against the bail, in pursuance of the former order of the court, and Smith having surrendered himself in discharge of his special bail, and filed his plea in the original action, the order to stay proceedings was made final.
    The counsel for the plaintiff contend that this order is erroneous: 1. Because the court of common pleas had no authority to stay the proceedings; and 2. If the court had the authority, it should not have been made without requiring of the bail that judgment should be entered against them to stand as security for the plaintiff in the original action.
    Wright and Hodges, for the plaintiffs:
    On this state of facts we insist:
    1. That the proceedings in the suit, on the appearance bail *bdnd, could not, without the consent of the plaintiff, be stayed, after a term had been lost by plaintiff, at which he might have obtained judgment, in the original action ; and the loss of the time having accrued by the neglect of the defendant to enter special bail.
    2. That, at least, the proceedings could not be stayed without judgment being entered against the defendants in the appearance bail bond suit, as security for the plaintiff in the original action.
    The law regulating these proceedings in regard to bail, is found in 29 Ohio Laws, practice act, sections 22-26, inclusive.
    Section 24 provides that when plaintiff has lost a trial for want of special bail being put in, in due time, before proceedings on the appearance bail bond shall be stayed, court shall require that defendants consent that judgment be entered up against thorn for plaintiff’s security in the original action.
    This is our case, and as this was not required by the court, the order staying proceedings, without such judgment, was irregular.
    Section 23 specifies the terms on which proceedings on appearance bail bond may be stayed, when the plaintiff has not lost a trial for the want of special bail being filed in due time. Those terms are as follows:
    1. That defendant file and perfect special bail.
    2. That he pay the costs incurred by the assignment and proceedings in suit on appearance bail bond.
    3. Receiving a declaration pleading issuably in the original action, and taking short notice of trial. All these prerequisites must be complied with before the proceedings can be stayed when a term has not been lost by neglect to put in special bail.
    It will be observed, 29 Ohio L. 60, that special bail must be filed on the return day of the capias, or on the succeeding day. If not, proceedings may be had on the appearance bail bond.
    Declaration de bene esse was filed in the original action before November term, 1832, so that judgment might have been obtained or trial had at that term, if defendants had entered special bail. It is at August term, 1833, that defendant asks' proceedings stayed; the third term after the appearance term of the suit in the original action.
    3. In the third place, we insist that the terms on which the *court ordered the proceedings stayed, are not in compliance with the requisitions of the statute; but even the terms that were imposed, were not fully complied with till nearly two years after the order of court to stay proceedings. The order does not require the defendant to plead issuably to the original action, nor does it require that the defendants in the suit on the bail bond consent that judgment be entered against them on the bail bond for the plaintiff’s security, both of which requisitions are by the statute -as peremptory as the others imposed.
    For these reasons, we insist that the order to stay proceedings in tbebail bond suit is irregular, erroneous, andean not be sustained.
    The proceedings in regard to bail are regulated by statute, and the law is explicit and peremptory. By the neglect or refusal of •the defendant to enter special bail in the original action, the plaintiff lost several terms at which he might otherwise have had atrial and judgment. And we assume the position that no practice different from this, if any such prevail, can control our statute. We are not aware, however, of any practice differing from that for ¡which we here contend.
    That part of our practice act which relates to bail will found to have been taken nearly verbatim from different parts of Tidd’s Practice. We refer to volume 1 of that work, chapter 12, page 245, and passim. It will there appear that the practice contended for by us is fully sustained.
    But whatever may have been the English practice, it should be borne in mind that their practice is regulated by rules of court; ours is regulated by special law. ' .
    
    We vyill here dispose of one or two objections that have been, urged in the former discussions of this subject.
    It is said we insist on strict technicalities, in order to fix the bail in this case. If this is an objection that requires an answer, we will state that the principal defendant in the bail bond suit is indorser on the note on which the original suit is brought, who is probably released from his liability as indorser by strict technical-rules, and no injustice is worked by his being made liable in the bail bond suit by technicalities.
    It is said the rule taken on the sheriff to bring in the body of defendant Smith, was a waiver of our right to take an assignment •of appearance bail bond. The rule was never served on the sheriff, -or i-n any way acted on ; but if it had even been acted on, does the consequence follow? The English practice at present *is essentially like ours; but formerly under their practice an assignment of bail bond could not be taken till after a rule on the sheriff to bring in the body. See 1 Tidd, 245; also, 1 Seld. Prac. 190. Because this preliminary is no longer essential, can it follow that mere entry on the journal of a rule on the sheriff, and never served on him or any way acted on, discharges the appearance bail ? The proceeding is between the sheriff and the plaintiff; the bail have' nothing to do with it. The law gives the plaintiff the benefit of the bail bond if he will take it; of course he may waive his rule- and take it.
    Another objection that has been urged is, that it is the policy of the law to save bail, and prevent imprisonment for debt; and. that imprisonment for debt is nearly a dead letter in public opinion, which ought to be regarded. If this is a substantial objection, I must be pardoned for saying I do not feel the full force of it. . So long as the law remains upon the statute book as it is, we should be governed by it; but if it is condemned in the opinion of the public, it will soon give place to a different one. It is in this-way only, I take it, that the judicial tribunals become acquainted with public opinion.
    
    'Woodruri’, for the defendants:
    The errors assigned by plaintiff are:
    1. That the court of common pleas ordered the proceedings in said suit on the bail bond to be stayed, on giving bail and paying costs, without requiring judgment to be entered upon said suit as security.
    2. In this,, that said court ordered the proceedings in said suit to be stayed.
    In arriving at a conclusion in this case, three material questions present themselves:
    1. Is an order for an exonerator the subject of writ of error?
    2. Had not the court of common pleas power, under all the circumstances, to order the proceedings on the bail bond to be stayed as above set forth ?
    3. Did-not the plaintiff, by his own act, waive his right to proceed against the appearance bail ?
    As to the first question, it appears to me, both upon principle- and authority, that a writ of error does not, nor ought it to lie upon an order for an exonerator. In 9 Serg. & Rawle, 24, a-question is raised upon this very point.
    *The order of the common pleas, staying proceedings on the bail bond, is matter discretionary with the court, and often arises on a state of facts which do not and can not appear on the-record, as was no doubt the case in the present instance; and if the court do exercise the power, it ought to be presumed that it wa& properly exercised.
    
      It may have appeared to the common pleas that the plaintiff had not lost a trial.
    “Matters which would induce a court to stay proceedings on a bail bond constitute a subject of legal discretion, and not of error.” 2 Rawle, 198.
    An additional reason why the court ought not to entertain a writ of error on the order of the court entering an exonerator, arises from the impossibility of placing the parties in statu quo, in case the order should be reversed..
    It is a maxim of law that bail should bo viewed favorably', and that no act of the principal should operate prejudicially to the bail. Had no rule on the sheriff been resorted to at the August term, 1832, but an assignment of the bail bond been taken, the appearance bail would have been apprised that special bail was-called for; but by taking a rule on the sheriff, and then by a private understanding with him that it should be waived, was calculated to mislead the bail. To reverse the order made by the common pleas would be placing the bail, by an act over which they had no control, in a much worse condition than they were in before said order was made, and give the plaintiff an advantage which in justice he ought not to have.
    2. Had not the common pleas power to make the order they did ?‘
    It will be observed in the jmesent case that the bail bond was-not assigned until June 29, 1833. After the August term, 1832, to which the original writ was returnable, and suit was brought, upon it, to August term, 1833, at which term special bail was entered, and afterward in the same term, defendant in the original action surrenders himself in discharge of his bail, who are exonerated by order of court, and defendant committed to charge of sheriff.
    It is to be presumed that the plaintiff being in court, in the eye» of the law, ought to have objected to the surrender; as he did not, his silence ought to preclude'him from afterward pursuing-the bail, particularly when a declaration absolute and plea had been filed in the original action, as was the case in the present instance.
    -¡'It will also be observed that a rule was taken at the August term, 1832, on the sheriff to bring in the body of the defendant. .This rule operated as a waiver of special bail. It was a-subsisting rule on the minutes of the court, and never appears to» have been revoked or annulled. It was certainly, to say the least, calculated to throw the bail off their guard, and they had a right to suppose that the plaintiff intended to proceed against the sheriff under the rule; and whatever understanding may have existed between the sheriff and the plaintiff’s attorney, in relation to the rule being waived, as is suggested in the bill of exceptions, such agreement or understanding ought not to affect the rights of the bail, as the rule was subsisting by virtue of the plaintiff’s own act, and no stop had been taken by him to. bring the cause to trial; he, the plaintiff, can not be said to have lost a trial up to ’ August, 1833, and such, most probably, was the view taken by the ■common pleas.
    But, suppose the plaintiff had lost a trial, it was through his own neglect. See Coleman and Caine’s Cases, 62, where the court say that “ it is not a loss of trial alone which will prevent our interfering to relieve in these cases, but that loss must be without neglect on the part of the plaintiff, and must he occasioned by the -delay of the defendant, after bail is called for." If a different practice was allowed, a plaintiff would be tempted to wait a term and thus ensnare the bail.
    The court will always stay proceedings, if application be made ■for that purpose, on the return of the bail bond writ.
    
    In the case under consideration, application was made on the return of the bail bond writ. The order was made, special bail entered, and afterwards exonerated by a surrender of the principal at the same term. The principal, then, was not injured by this ■act, the bail had a right to surrender the body either before or after special bail given, and the body being surrendered, he had -the highest security that he could ask, and it was for the court of common pleas to judge whether the principal had lost a trial, for it is not every delay that can be said to occasion the loss of a trial, even though the term may have passed, in which, by the most •speedy course of law, a trial might have been had.
    3. Did not the plaintiff by his own act waive his right to proceed against the appearance bail?
    By section 10 of the practice act of this state, 29 Stat. 60, it is provided that if special bail be not put in and perfected in due time, the plaintiff may proceed on the bail bond, or *rule the sheriff to bring in the body of the defendant. By this provision <of the law, the plaintiff has his election, to proceed on the bail bond, if special bail is not put in, or to rule the sheriff, etc. If he makes his election he is bound by it, for by the very act he-tacitly consents to waive his remedy against the bail, and manifests his choice to proceed against the principal; he can not proceed against both. Upon this point I would refer to Beecher v. Summons and Andrews, 7 Johns. 119; 1 Archbold’s Prac. 80-92 ; 1 Com. Dig. 673; Swift’s Dig. 596; 2 S. & R. 421.
    No case, I believe, can be found where both remedies have been allowed.
    Inasmuch as the plaintiff, in the present instance, caused a rule-to be ordered against the sheriff, from that moment his election was determined ; nor could he afterward revoke it, especially upon an agreement between himself and the sheriff. The granting of' the rule was the act of the court, and it could not be nullified by the act of the plaintiff; so that the suggestion contained in the bill of exceptions in relation to this matter can have no weight as-against the discharge of the appearance bail.
    Another point which suggests itself, and may be worthy of consideration, is the fact, that a declaration was filed on October 18$ 1832, as it is said (de bene esse); whether there can be such a filing under our practice is very doubtful. If a declaration is filed debene esse, in what does it differ from one filed absolute? Eor what, purpose is it filed de bene esse? Is it to await the production of. the defendant’s body under a rule against the sheriff, or to await the filing of special bail, or for some other purpose? There is no reason or necessity, in my humble opinion, for such a filing under our practice, for the statute expressly provides that upon return-of service, the defendant may be declared against. The party, being therefore in court, upon the return of the capias served,, the filing of ihe declaration operated as a waiver of special bail.
    However-this may be, it appears to me that the plaintiff having • filed his declaration absolute, on March 30, 1835, receiving a plea, thereto, and taking judgment in the original action, after a delay on his part to proceed regularly against the bail bond, precludes» him from his remedy against them.
    STORBitand Spencer submitted an argument for defendants.
    *Wright and Hodges, in reply:
    Counsel commence with a mistake, which probably has misled them, as to the question of delay, through their whole argument.
    On the first page, it is stated that defendant, Smith, pleaded to-the original action “August 20, 1833, and on the same day judgment was rendered on submission to the court for the plaintiff.” 'The records show that he pleaded at February term, 1835, and that judgment was then rendered. By his refusal to pay costs, -according to the order of the court, at August term, 1833, and plead, he prevented our obtaining judgment till that term, but .still he complains of our delay.
    A word on the subject of diligence. The law makes it the duty of the defendant to enter special bail on the first or second day of the return term of the writ. It is not made the duty of the plaintiff to compel him to do so. The appearance bail also undertake that he shall do so. Should they not see that he does it, or do it for him? See Huguet v. Hallet, 1 Caine, 56.
    The appearance term was permitted to pass without special bail being entered, and in due time thereafter plaintiff files his declaration de bene esse. Could he do more ? If he had, he would have lost his recourse against appearance bail. See Candee v. Kelley, 7 Ohio, 2d part, 210, where this is fully sustained. Counsel seem to admit it in their argument. Sufficient forbearance was exercised toward defendant to enable him to enter special bail, without subjecting-him to cost or trouble on appearance bail bond.' He neglected it till plaintiff had lost a term, at which judgment •could have been had. Assignment was then taken. The delay, if any, was favorable to the defendants. There is no time .within which assignment shall be made and suit brought. See Graham’s Prac. 140 (N. Y.), which says this maybe done “at any time.” See People v. Wyatt, 6 East, 215. The cases cited by counsel refer to proceedings against sheriff, where different rules apply.
    After the order of August term, 1833, to which exceptions were filed, what course did defendants pursue? They neglected to comply fully with that order, and still complain of delay. Had the plaintiff any other alternative but to await their performance of those conditions, or proceed in the bond bail suit? If plaintiff had proceeded and taken judgment in the original suit without. insisting on a full compliance with the terms of the order, should we not now have been met with the argument that we *had, by so proceeding, waived our rights and lost the benefit of our exceptions to the order? Assuredly, and with justice, too. We are again compelled to proceed in the bail bond suit before we can get the term's of the order complied with. The entry of February term, 1835, is not an order; it is merely a certificate that “the terms are complied with.
    From the history of the case, as disclosed by the records, it is apparent that defendant, Smith, was resorting to every expedient for delay, both in putting in special bail and in complying with the order of August term, 1833, in order to arrange his affairs so that he might surrender himself in discharge of his bail, take the benefit of the insolvent law, and so pay off the debt.
    Another position assumed by the counsel is this: “ If the sheriff is ruled to bring in the body, an election is made by plaintiff, which confines him to that remedy exclusively.” In support of this position, reference is made to 1 Seldon’s Pr. 176; also, Brooke v. Stone, 1 Wils. 223. The point decided there is, that if plaintiff has taken an assignment of the bail bond, he shall not afterward have a rule on the sheriff to return the writ. Also, 7 Ohio, 210. The point there decided is, that after plaintiff had accepted a plea and taken a judgment against defendant, ho can not afterward sustain an action on the bail bond. The authorities cited by defendants’ counsel do not conflict with the positions maintained for the plaintiff.
   Judge Wood

delivered the opinion of the court:

In an action against appearance bail, the statute vests in the courts of this state a discretionary power,^intended to be sufficiently ample to effect all the purposes of substantial justice. The object of bail is to secure the defendant’s person to respond to the judgment. When this is accomplished the design of the law is, in ordinary cases, fulfilled. When no real injury has accrued, but a technical right of action only exists against the bail, it would be a reproach to the administration of justice if there was not power, somewhere, to stay or arrest the proceedings. For such a case the legislature have endeavored to provide, by giving to the court, when the proceeding is pending, full authority over it, so far as justice may require. This authority is derived from sections 22, 23, 24, and 25 of the “act to regulate the practice of the judicial courts.” 3 Chase’s Stat. 1676. Section 22 enacts “ that the proceedings on the bail bond may be set aside, if irregular, or stayed if regular, upon terms, in order *that a trial may be held in the original action.” Sec. 23. « That when the plaintiff, in the original action, has not lost a trial for want of special bail being filed in due time, the court, or judge, may stay the proceedings on the bail bond, upon putting-in and perfecting special bail, paying the costs incurred by the •assignment and prosecution of the bail bond, receiving a declaration in the original action, pleading issuably and taking short notice of trial.” Sec. 24. “That when the plaintiff has lost a trial, in the original action, for want of special bail being filed in due. time, it shall be the duty of the court, before the proceedings be stayed on the bail bond, further to require that the bail consent that judgment be entered against them, on the bail bond, for the-plaintiffs security; and, in such case, if the defendant fail in the original action, the bail shall be liable to immediate execution,” etc. The statute confers upon the courts of this state, powers similar to those which are exercised by the courts at Westminster.. 3 Chit. Pr. 389; 3 Har. Jur. 1984-1986; 1 Arch. Pr. 98. If a trial had been lost in the original action, because bail above had not been put in, the king’s bench would not stay the proceedings, in a similar case, without requiring the attachment against the sheriff to stand as a security. Arch. Pr. 99. If a trial had been lost, in this case, the court of common pleas should have required the bail to consent to the entry of judgment against them, on the bail bond, to stand as the plaintiff’s- security, before the proceedings were stayed. But had a trial been lost? If not, it is not contended there is anything erroneous in the order to stay. Besides, it is settled that the loss of trial must be without the lachesof the plaintiff, Barnes, 103; 3 B. & P. 221; or the court will not' impose on the bail the judgment against them as the condition to-stay. Whether a trial has been lost or not must be ascertained by the court; it is not to be inferred from the lapse of a term, or-several terms, when the plaintiff might have had judgment, had he been diligent, if special bail had been perfected. The plaintiff must show all the facts and circumstances, necessary to prove a. loss of trial, by affidavit. Rex v. Sheriff of Surrey, 5 Taunt. 606. The evidence on which the court of common pleas acted, is not. contained in the record. That court, undoubtedly, found from the testimony; that there had been no loss of trial, etc. It is our duty to presume such was their finding until the contrary appears.. The inference the law raises is, that every court does its duty *and does right; and he who would reverse a judicial proceeding must point out the error. The court of common pleas-acted on such evidence as was produced. That court was the judge of its weight, its credibility; and although its conclusion may have been different from what ours would have been, had we been called to decide on the same evidence, its decision was a subject of sound discretion in that court, and not liable to revision in ours. Indeed, it may well bo doubted, whether error will lie to the common pleas on an order to stay proceedings against bail. In King et al. v. Bank of Gettysburg, it was solemnly determined by the Supreme Court of Pennsylvania, that matters which would induce a court to stay proceedings on a bail bond, constituted a subject of legal discretion, and not of error. 2 Rawle, 198. I am not authorized by the court, however, to say that this point is determined. It was not deemed necessary to be settled in this case, as its decision could not vary the result.

But there is another and more satisfactory ground, perhaps, to sustain the order of the common pleas. The record shows that at the return term of the capias against the defendant, in the original action, the plaintiff obtained a rule against the sheriff, to bring in the body of Smith in three days. This rule was entered of record. The inquiry then arises, whether, after the entry of such rule, the plaintiff could take an assignment of the bail bond? If he could not, the court of common pleas was most clearly right, by virtue of its inherent power over its process and proceedings in similar cases, in staying the proceedings against the bail, on that ground alone.

We have not been able to find any adjudicated case directly in point. There are those, however, which bear a striking analogy. In Baker v. Simmons, impleaded with Andrews, the Supreme Court of New York determined that a plaintiff having elected to proceed on a bail bond to a judgment, and having charged the bail to the arrest and his principal in execution, could not be afterward permitted to waive those proceedings by filing common bail in the original suit, and proceeding to judgment therein.. That the remedies were inconsistent with each other, and both could not be pursued; that such a course would be oppressive. 7 Johns. 119. At Westminster, after taking an assignment of the bail bond, the plaintiff can not proceed against the sheriff;, but, the rule does not seem to hold e converso, for he may rule-the sheriff and then take an assignment of the bail bond. 1 Sold. *Pr. 176, 190; 1 Wil. 223. But the decision of this question must depend mainly on the construction of section 10 of the practice act. 3 Chase’s Stat. 1675. That section enacts, “ That if special bail be not put in and perfected in due time, the plaintiff may proceed on the bail bond, or, rule the sheriff to bring in the body of the defendant.” The language of this section is in th& alternative. The plaintiff may proceed on the bail bond, or, rule the sheriff. Can he do both? Such an inference seems to us to be excluded by •the language used. He may elect which of the alternatives he -will pursue, but when such election is made he is bound by it. 'The rule on the sheriff being entered of record is evidence of the ¡plaintiff’s election, and while it remains he can not take an assignment of the bail bond. It is said the rule was not served ; but ■that can make no difference, for the entry of the rule determines ¡the plaintiff’s election.

It is contended this was waived by a verbal understanding ; but ’-to this the bail were not parties, nor had they any knowledge of vthe fact. The entry of the rule was notice to all interested of the plaintiff’s election. The bail, seeing it, would rest satisfied they •could not be made liable on any future assignment of the bond to ¡the plaintiff, and would take no steps to indemnify themselves of ¡their principal. At all events, such rule could not be discharged ¡by a private, verbal agreement, unknown to any but the sheriff ,and the plaintiff.

In any point of light in which we have been able to view this • case, we think the judgment of the common pleas ought to be af¡firmed. We come, perhaps, more satisfactorily to that conclusion, ¡from the fact that it appears from the record, that the body of ¡Smith is still in the custody of the sheriff, to respond to the plaintiff’s judgment, and the object he had in view in commencing the (Original action by capias is fully attained.  