
    CONSTITUTIONAL COURT, CHARLESTON,
    JANUARY AND MAY, 1806.
    Usher and another v. Frink and Langstaff.
    The sci. fa. against bail to the sheriff, must state that defendant became bail, and the substance of the bail bond, or it may be demurred to.
    
      Sci. fa. against bail, before Trezevant, J., in Charleston. The declaration stated that judgment had been obtained, in the original action, against Theophilus Pease, against whom execution issued, and that sheriff had returned non est inv. That sheriff had returned to the capias ad respondendum against Pease in the original act cepi corpus, and had marked the names of the defendants as bail; and that they were liable, and prays judgment. To this declaration defendant demurred generally, and plaintiffs joined in demurrer. Judgment for defendants in District Court.
    Motion to reverse the decision of the District Court, argued 9th May, 1806, by Griggs and Cogdell, in support of the motion, who contended that the endorsement of the names of the defendants on the writ of capias ad respondendum, was part of the sheriff’s return, which could not be controverted, being matter of record, and that the defendants were liable as bail. That the declaration stating only the material facts was sufficient. That it was not necessary to set out a bail bond, nor was it necessary to produce a bail bond in proof; for the bond is given to the sheriff, who may keep it privately by him, or mislay it. That under the act of 1785, the remedy upon the bail bond is done away, and the statute 4 and 5 Ann, repealed. The sheriff’s return is sufficient, and the bail bond need not be produced. Judgment on sci. fa. against bail must be on matter of record ; and the bail bond is .not matter of record, but the return of the sheriff is. If sheriff return elongata, it is sufficient. 5 Burr.
    Bailey, on the other side, was stopped by the court.
   Grimke, J.,

delivered the unanimous opinion of all the court. The declaration is insufficient. It ought to appear by the declaration that the defendants actually became bail to the sheriff. It is immaterial to them whether the sheriff endorsed their names on the writ, or returned them as bail, if, in fact, they never engaged to him as bail. To render a party liable as bail to the sheriff, it ought to appear substantially to the court, that he entered into an express engagement to answer for the appearance of the party sued in the original action, and that default was made by that other party.

The substance of the bail bond ought to be stated.

Judgment for the defendant.  