
    Smith & Moreton v. Wallace.
    April Term, 1794.
    Bail — Objections to. — It is no objection to a bail piece entered into by one defendant, that it takes no notice of the other defendant.
    Equity Practice — Judgment against Sheriff — Relief.— A mag-ment entered against the Sheriff, under a mistaken opinion of tile Clerk, that the hail piece was insufficient, the counsel having agreed that it might he filed, is relievahle against in equity.
    This was an appeal from a decree of the High Court of Chancery. The case was as follows: The appellants instituted a suit in the General Court against Benjamin and William Piper, the latter of whom being arrested by the appellee (the sheriff) was discharged upon the parol agreement of Jett to become bail for his appearance.
    The clerk being of opinion that this undertaking was not sufficient, and a bail piece being offered, and rejected by him, because it did not mention the name of the defendant on whom the writ had not been served, a common order was entered at rules against the defendant and sheriff. On the 8th day of the succeeding term (at which time the office judgments were to be set aside) the bail piece being again objected to by the clerk, for the reason before mentioned, it was shewn to the plaintiff’s counsel, who thinking it sufficient, said that he should make no objection to it. It was then delivered to the clerk, who was directed by the counsel to file the same; but he, not knowing what had passed at the bar, entered the plea of payment for the sheriff, against whom judgment was afterwards obtained in the District Court. Prom this the sheriff appealed, pending which, the real defendant offered *to deliver himself up to the plaintiff’s attorney, in exoneration of the sheriff, but was refused. The gentleman who appeared as counsel for the plaintiffs in the General Court, being examined as a witness in this cause, deposed, that when he declared ne should not object to the bail piece, he only meant that in case a motion were made by the defendant’s counsel to receive the bail piece, and to be permitted to set aside the office judgment, he should not oppose it; but that he still expected the sanction of the court was to be obtained, as was the practice where an objection was made to the bail piece.
    To be relieved against this judgment, the sheriff filed his bill in the High Court of Chancery, and a perpetual injunction was decreed, from which decree an appeal was prayed.
    Ronold for the appellants.
    I must admit that the case of the sheriff is a hard one, and cannot fail to excite compassion. It is to be regretted that he can be relieved only by shifting the burthen from himself, to another, who on no principle whatever ought to bear it.
    Eet it be supposed, that the appellants and the appellee are equally innocent; equally clear of any charge of negligence, or improper conduct. Yet their relative situations in this court are widely different. The former, has the law in his favor, and cannot lose the advantage it gives him, unless it be opposed by superior equity on the part of the latter. It cannot be pretended that this is the case. But the truth is, that the appellee has not equal equity with the appellants, because he has been guilty of an unwarrantable negligence, which has operated to the prejudice of the party against whom he now seeks relief.
    By omitting in the first instance to take a bail bond, he deprived the plaintiff at law of the opportunity of excepting to the special bail. Eor unless appearance bail be given, special bail cannot be demanded. But admit that the bail piece was sufficient, and so considered by the plaintiff’s counsel, it was the duty of the sheriff, against whom the judgment was entered at the rules, to see that the bail piece was filed, and a proper plea entered. He could relieve himself by no other means. He was legally, as well as equitably, bound to substitute some other security for the debt, before he could be discharged.
    Tho’ he should be permitted to shelter himself under the plea of ignorance or sur-prize, on the day the mistake (as it is pretended) happened, yet the orders of the court being extended, and read the succeeding day, gave him abundant opportunity to correct it. His failing to do so subjects him at least to the charge *of negligence, against which equity can never relieve, and for which a third person ought not to suffer. This negligence was calculated to impress the plaintiff’s counsel with a belief, that the bail piece was withdrawn, and consequently prevented him from objecting to the sufficiency of the bail, which he was not precluded from doing by his agreeing not to object to the form of the bail piece.
    Between persons standing in this situation, equity ought not to interfere.
    Marshall & Campbell for the appellee.
    If accident or surprise can ever ' furnish a ground for the relief of a Court of Equity, the pretensions of the appellee in this case must be well founded. But if Mr. Ronold be correct, it is impossible that accident, unmingled with fraud, can ever be relieved against; for in all such cases, both parties are, or may be equally innocent. If a bond be lost, or destroyed, both parties are equally innocent, and yet a Court of Equity will relieve. No blame is imputed to the appellant, and none can with propriety be charged upon the appellee. Yet an accident has happened, which subjects the latter to unmerited injury at law.
    The appellee did every thing which he was bound to do. When the bail piece was objected to by the clerk, his attorney had either to appeal to the court, or to adjust the difference with the adverse attorney — ■ he attempted the latter, and succeeded — the former became of course unnecessary. The clerk was then directed to file the bail piece. Ignorant of the agreement of the counsel, he by mistake enters a plea for the sheriff. The blunder was in the officer of the court, not in the party, and therefore it should not injure him. But it is contended that a real injury to the plaintiffs might have resulted from this mistake: suppose it might, yet none such is proved: a real injury sustained by one party, is not to be sanctioned, because it is possible that the other might also have been injured. But there is in truth no ground, even for the conjecture of the counsel. The sheriff is not bound to take appearance bail. He may himself become special bail, or the defendant may give other special bail. Suppose the bail piece had been filed, would the appellant have been in a better situation than he now is? He could not have charged the bail, until after a non est inventus had been returned upon a ca. sa. against the principal; and it appears that the principal offered to surrender himself.
    
      
      The principal case is cited in Dickinson v. Sizer, 4 Rand. 117, 126.
    
   *LYONS J.

The court are of opinion that the bail piece was sufficient, and must have been so considered if it had been objected to, at the time it was offered. The clerk therefore mistook the law when he rejected it, and entered a plea for the sheriff. That court might, and most certainly would, have corrected this mistake at any time, if it had been moved to do so. But the party was ill advised when instead of doing this, he applied for a supersedeas to the judgment, since the record furnished a Superior Court with no ground for an interference.

However, we are fully satisfied upon the equity of this case. A more complete sur-prize can hardly be conceived. It would be strange if an accident so mischievous as this in its effects, were beyond the reach of that court, whose peculiar province it is to grant relief in such cases. The negligence with which the appellee is charged, is fully excused by the agreement of the counsel, and the mistake which followed; and therefore cannot be urged as a ground for denying the relief which has been extended to him.

The decree must be affirmed.  