
    Armistead v. Marks & Saunders.
    October Term, 1794.
    Deputy Sheriff — Failure to Take Appearance Bail on Mesne Process — Liability—Supersedeas.—The law does not warrant the rendering of a judgment against a Deputy Sheriff for tailing to take appearance bail upon mesne process; and if judgment be so rendered against him, he alone may obtain a supersedeas.
    The defendants in error brought an action of debt upon a bond with a collateral condition against Herbert Claiborne, William Claiborne and others, in the District Court. The appellant, a deputy sheriff, arrested the defendant Herbert Claiborne and made return thereof, signing his name as deputy sheriff, but failed to return a bond for appearance. A common *order was confirmed, and a writ of enquiry executed against the plaintiff in error, and the two Claibornes, and judgment was entered thereupon. The other defendants having pleaded non est factum, a verdict was found in their favor. The deputy sheriff alone applied for, and obtained a supersedeas.
    The questions made were, 1st, whether the common order ought to have been confirmed against the deputy sheriff, and 2dly, whether Armistead alone could obtain a su-persedeas.
    Wickham for the plaintiff in error
    as to the first point, relied upon the case of White and Johnson (see ante p. 159) as being expressly in point.
   The PR^SIDIDjSFT.

On the first point the court have no difficulty in reversing the judgment, being of opinion that the law does not warrant a judgment against an under sheriff for failing to take appearance bail upon mesne process.

As to the other point (which was suggested by the court) we are of opinion, that as the deputy sheriff was in no respect concerned in the merits of the cause, he alone, might obtain a supersedeas.

The enquiry of damages must therefore, be set aside, as to all the defendants, as must the proceedings subsequent to the declaration, and the cause is tobe proceeded in anew upon the sheriff’s return, made upon the writs issued against the two Clai-bornes.  