
    CONSTITUTIONAL COURT, COLUMBIA,
    NOV. 1807.
    Douglass v. Wight, et al.
    
    ijtjjg defendant must be called upon to put in bail above, or it will not b& necessary for him to do so.
    The act of assembly, which authorizes a sci.fa. to issue against the bail to the sheriff, does not require the bail bond to be assigned.
    
      Sci.fa. in Abbeville district, before Bay, J.,on a bail bond. Defendants were bail to the sheriff, for the appearance oí one William Wight. At the appearance court, in the action against William Wight, he. appeared by bis attorney, and made a defence; but no bail above, or bail to the action, was given. The defendants objected, at the trial of the action, on the sci. fa., that the plaintiff, in the original action, having allowed the defendant to come in and make his defence, was a waiver of his dependence on the bail, and discharged them from all further responsibility. That if he had insisted on special bail, the defendants would have surrendered their principal in court; and by not demanding special bail, the plaintiff had tacitly consented to dispense with it. The defendants further objected, that the sci. fa. could not be maintained, as the bail bond was not assigned by the sheriff to whom it was given, which was necessary to authorize the plaintiff to sue upon it.
    Bay, J., overruled these objections ; whereupon a motion was brought forward in this court, for leave to enter up a judgment of nonsuit, on the grounds above stated.
    Goodwin, and Nott, argued in support of the motion.
    
    Lesley, contra.
    
   Waties, J.,

delivered the resolution of the whole court, except Trezuvant, J., sick. Although, by the practice of the English courts, it appears, that accepting a plea from the defendant, or requiring him to plead, before bail above has been put in,'is construed to be such an act as amounts to an implied relinquishment of special bail, which will discharge the bail to the sheriff, yet that practice has never obtained in this State; and the defendant must be called on to put in bail above, or it will not be necessary for him to do so. And this is more reasonable than the practice- which has obtained in England ; because a man may not be able to find bail, and shall he, for this cause, be deprived of the beuefit of any de-fence which he may have ? Nor can any serious inconvenience, or disadvantage, be experienced, by plaintiffs from the establishment oí this rule of practice, which the court undoubtedly have a right to establish, though it may vary from the rules of practice established in England ; for the rules of court aie in the power of the court, who may mould them to answer the ends of justice and convenience. As to the objection to the want of an assignment of the bail boud, there is no ground fur it. The act of assembly, which authorises a sci. fa. to issue against the bail to the sheriff, does not require the bail bond to be assigned, as the statute of Ann does, where an action of debt is to be brought on the bond. But the sci. fa. is founded on the judgment obtained in the original action against the principal, and upon the bail bond ; and both must be set forth in order to show the liability of the bail to respond the judgment against tljeir principal, according to the uct.

Motion rejected.  