
    
      W. J. Bennett vs. A. H. Brown, Sheriff.
    
    The sheriff is not bound to take more than one person as bail; and the test of his liability is, did he take such person knowing him to be insufficient, or under such circumstances that he should have known his insufficiency 1
    
      
      Before Wardlaw, J. at Charleston, May Term, 1848.
    This was an action on the case for taking insufficient bail.
    On the 23d July, 1841, the plaintiff sued out a bail writ in assumpsit against one B. W. Basden and lodged it with the defendant. Basden was arrested, and on the. 9th August gave bail bond to the defendant, with one Angus Stewart as his bail. The plain tiff recovered judgment against Basden, and on the 11th June, 1842, lodged with the defendant fi. fa. and ca. sa. thereon. The ca. sa. was returned non ,est inventus by the defendant.
    Numerous questions were made, but it is deemed necessary to report only so much of the case as relates to the only question considered in the opinion delivered in the Court of Appeals. For the report of a former trial of the case, see 1 Strob. 303.
    Upon the question, whether the sheriff was bound to take two persons as bail, his Honor reported his charge as follows:
    “ The sheriff is answerable if he reject as bail two responsible persons of his district; but he is not necessarily liable for taking less than he was compellable to take. Justification of bail, properly speaking, is a judicial proceeding, to which our form of the sheriff’s taking bail is not accommodated ; but the swearing of bail, called by that name, is a known measure of precaution, which diligence would prompt in a case of suspicion; the neglect of it, where there was not suspicion, would not necessarily cause liability. If the insufficiency of Stewart as bail had been made to appear, the question of the sheriff’s liability would depend upon the inquiry, “ Did he take Stewart, knowing him to be insufficient, or under such circumstances that he should have known his insufficiency.” Prima facie, that the bail has proved insufficient, shows the sheriff’s liability, but this is rebutted by evidence that the condition of the bail changed after he was taken, or that appearances were such as to deceive the sheriff. Of course, information of the truth would correct false appearances, but in default of such information, what were the appearances ? (The visible condition of Stewart’s property, and the incumbrances which had been shown to affect it, were here pointed out according to the evidence).”
    The verdict was for the defendant. The plaintiff appealed, and moved for a new trial, on several grounds. The 2d and 6th were as follows :
    2. Because, according to law, the plaintiff was entitled to have the security of two persons to the bail bond, and the law, as distinguished from mere custom, ought especially to have been enforced against a sheriff who refused to take the caution and warning of the plaintiff not to take as bail a single surety, who turned out to be insolvent at the time the sheriff disregarded the objection of the plaintiff.
    6. Because his Honor charged, that, if the jury found for the plaintiff at all, they ought to take into consideration and assess the value of the judgments against Basden and Stewart, and deduct such supposed value from the amount of plaintiff’s claim, and find their verdict accordingly.
    The case was twice argued, first in January, 1849, and again at this term.
    
      Campbell, for appellant,
    cited, on second ground, Loker vs. Antonio. 4 McC. 177; Harwood vs. Robertson, 2 Hill, 338; Crosslin vs. Read, 2 McM. 13 ; Chiswell vs. Elbzey, Rice, 30 ; 2 Mete. 490; Long vs. Billings, 2 Mass. R. 482; Prac. Reg. 84; Barnes’ notes, 60 ; 1 Sellon Pr. 133, 159 ; Rice vs. Hosmer, 12 Mass. 130; 1 Mill, 314; 3 Rich. 49 ; Spa?'hawk vs. Bartlet, 2 Mass. R. 190; 2 T. R. 575; Petersd. on Bail, 204.
    
      Porter, Yeadon, contra,
    cited Act 1809, 7 Stat. 399; Bew-fage’s case, 10 Rep. 100; 1 Bay, 322; 2 Bay, 173 ; 2 Brev. Dig. 210; Drury’s case, 10 Rep. 101, a; 2 Saund. 61, note 5 ; 1 Tidd Pr. 196; 1 Sellon Pr. 129 ; Act 1785, 7 Stat. 215 ; Act 1839, 11 Stat. 29 § 14 ; 3 Rich. 49.
   The opinion of the Court was delivered by

O’Neall, J.

The various grounds of appeal in this case have been satisfactorily met and disposed of by the report of the Judge below, with the exception of the 2d and 6th. As to the 6th, this Court expresses no opinion, inasmuch as (he finding for the defendant' cuts off the enquiry as to the measure of damages. .So the whole case is resolved into the enquiry, was the plaintiff entitled to the security of two persons as the bail for the defendant, Basden ? I have no doubt such is the law of England. But the legislation of this State and the decisions of our Courts have so widely departed from the -English rules, in this respect, that while we look to them as our great landmarks, yet we are obliged to make many exceptions.

That the sheriff was responsible for a debtor held to bail in England until he justified and put in special bail to the action, is clear : that the statute of 23 H. YI, ch. 9, (P. L. Append. 8), compelled him to let to bail all such prisoners, “ upon reasonable sureties of sufficient persons, having sufficient within the counties,” <fcc. is also clear ; yet there is no doubt that this did not absolve the sheriff from liability — he still was bound for his prisoner. The bail bond was merely his security. Hence he was allowed, if he chose, to take but one surety. For this did not contravene the law, which compelled him to release when two were tendered.

The Act of 1785 (7 Stat. 215) first began the alteration of the law of bail in this State. For it provided that before the bail to the sheriff, or common bail, should be liable to be proceeded against, the principal should be pursued to judgment: and that there should also be a return upon the execution, either that the defendant is not to be found, or that he hath no effects whereon to levy the debt and costs, then that the plaintiff might have a scire facias against the bail. This provision is the 10th section of the County Court Act: the preceding section belonged to the County Court system and perished with it: but its words show both as common and special bail, that one or more persons were contemplated, as perfectly regular.

The case of Teasdale vs. Kennedy, (1 Bay, 322), decided in 1793, laid down the rule where only one person was bail and turned out to be insolvent, that, if he was, when taken as bail, a house holder in apparent good circumstances, the sheriff was bound to take him for bail, and that he was therefore not liable for taking insufficient bail. This case, beyond all doubt, conformed the law of bail to the Act of 1785, and made a broad exception to the rule in England. The case of Teasdale vs. Hart, (2 Bay, 173), decided in 1798, is a recognition of the principle settled in Teasdale vs. Kennedy. Each of these cases were, however, when the law treated the bail bond, as it really was, as bail to the sheriif, or common bail.

The Act of .1809 (7 Stat. 309) put bail to the sheriif upon the footing of bail to the action, or as it is termed in the Act, following the words of the County Court Act, special bail: and here if the distinction had been at all observed between bail to the sheriif and bail to the action, it might have been that our practice would have conformed entirely to that in England. But it is plain, on reading the 3d and 4th sections, (both, however, numbered in the Statutes at Large as the 3d), that bail was in the mind of the Legislature (as it was in 1785) as one person.

The case of Loker vs. Antonio, 4 McC. 175, (decided in 1827), was on a bail bond, where only one person was the bail. The question was, whether the declaration should conform to what was necessary on a bail piece, in bail to the action. The Court held, that it should, that this was a necessary consequence of the Act of 1809. Judge Colcock, when the case was first before the Court, (page 176,) speaks of bail, under the Act of 1809, as one person. In Harwood, assignee, vs. Robertson, (2 Hill, 336), decided in 1834, the action was on a bond, in which one person was bail. In Dickinson vs. Coward, (3 Rich. 49), the complaint was against the sheriff for taking an insufficient bail bond. The ground was, that the sheriff had taken one person as bail, who did not live in the district. There was no attempt to charge him because he had not taken two. This case was decided in 1846, and the whole Court affirm the rule of the sheriff’s, liability as stated in Teasdale vs. Kennedy. The 14th section of the Act of 1839,' in its terms shews very fully and clearly that bail was regarded as one person, (11 Stat. 29).

This review very clearly shews, that our practice of regarding one person as sufficient bail, “ if be be a house-holder in apparent good circumstances,” is too deeply interwoven with the administration of justice to be now changed. I therefore concur in the question propounded by the Judge below to the jury, as a test of the sheriff’s liability; did he take Stewart knowing him to be insufficient, or under such circumstances that he should have known his insufficiency ? The jury have answered this question in favour of the defendant. There is no such flagrant error in their conclusion upon the facts in this respect as will justify us in ordering a new trial.

The motion is dismissed.

Evans, Wardlaw, Frost, Withers and Whitner, JJ. concurred.

Motion dismissed.  