
    Travis, Assignee, &c. agt. Hill et al.
    
    Special "bail piece, reciting the action trespass on the case, put in, to an action brought by capias describing the action as trespass (for assaulting and having criminal conversation, &c.), is irregular. Where plaintiff’s attorney treated such a special bail piece as a nullity, and, without returning the copy and notice thereof served on'him, *or advising defendant’s attorney of [*241?] the mistake, took an assignment of the bail bond to the sheriff, and brought an action thereon; held (although considered sharp practice), that the defendant must pay the costs of the bail bond suit on setting the same aside, without costs of the motion.
    
      September Term, 1846. .
    Motion by defendant to set aside the proceedings in this cause, as irregular.
    This was a motion to set aside the proceedings of the plaintiff in this cause, which was brought on a bail bond given in a suit, entitled “ Supreme Court, Stephen D. Travis agt. Addison Hill,” for irregularity or for relief on terms.
    The only point was this: The capias in the original suit preceding the ac etiam clause read as follows: “in plea of trespass.” And the ■ special bail piece put in by defendant, after giving the names of special bail, &c., read as follows:
    
      “ in a plea of trespass on the case.” On the part of the plaintiff, it appeared that on the 19th of May last, defendant, Addison Hill, was arrested on the capias in the original suit, and gave a bail bond to the sheriff to appear in the action, by putting in and perfecting special bail, according to the practice of the court. The writ was returnable on the 6th of July, 1846, and was returned on or before tne return day. Plaintiff’s attorney not having received notice of the appearance of defendant in the suit, on the 22d of July last filed his declaration de bene esse, and more than twenty days having elapsed after the return day of the writ, and the defendant not having put in special bail to the action, the plaintiff took an assignment of the bail bond given to the sheriff, and brought this action. Defendant showed that special bail was filed on the 23d of July, and copy and notice thereof served on plaintiff’s attorney on the 25th of July, together with notice of retainer of defendant’s attorneys. Defendant’s attorneys stated, they had never received any notice from plaintiff’s attorney, relating to the original suit, and that the copy bail piece and notice, and notice of retainer had never been returned by plaintiff’s attorney, and they never knew but that the proceedings in reference to the special bail were satisfactory to plaintiff’s attorney until this suit was commenced. It appeared that the ac etiam in the capias was for assaulting and having criminal conversation with the plaintiff’s wife.
    E. Yebks, defendant's counsel.
    
    Yebks & Bailey, defendants attorneys.
    
    Wm. Nelson, plaintiff's. counsel and attorney.
    
   Bbonson, Chief Justice.

The defendant made a mistake in the original action, by putting in bail in a plea of trespass on the case, when it should have been trespass. After receiving notice of bail, and without advising the defendant of his error, the plaintiff took an assignment of *the bail bond, and commenced this action. This was pretty sharp practice; but still, I think the defendant must pay the costs in the bail bond suit on setting aside the proceedings in that action. No costs will be given on this motion. Ordered, that all of the plaintiff’s proceedings in this suit be set aside, on defendant’s paying the costs of the same, and putting in and perfecting bail in the original action.  