Rosenstein v. Sammons

Headnote

Held, that a suit may be maintained by the sheriff upon a bail bond taken by him pursuant to the revised statutes, on an arrest, and nominal damages, at least, recovered, even though special bail in the original action was put in before the sheriff sued; the defendant being in default for not appearing according to the condition of the bond, and the sheriff having been subjected to the costs of an attachment for not bringing in the body: and this, without the sheriff having actually paid the costs, or put in bail in the original suit, or been subjected to any further liability.

Error from the Montgomery common pleas. The action below was debt on a bail bond given to the plaintiff below, sheriff, &c. upon the arrest of Rosenstein in 'virtue of a capias ad respondendum issued out of said court, returnable in September term, 1839. The bond was in the form required by the revised statutes. Rosenstein did not appear in the original action within the time required by the bond; but in December term after, he caused his. appearance to be entered, and notice thereof given. Before this was done, however, proceedings had been taken against the sheriff for not bringing in the body, and an attachment awarded, the costs upon which he had promised to pay. He had not put in special bail, nor actually paid any thing in the original suit.; nor had any proceedings been taken to subject him

to liability, beyond those above mentioned. This suit was not commenced until after Rosenstein had put in special bail, &c. These facts all appearing before the plaintiff below rested his case, the defendants below moved for a nonsuit, on the-grounds—1. That the action would not lie after an appearance in the original suit; and 2. That the plaintiff below had not shown himself actually damnified by the payment of any thing in that suit. The court overruled the motion, to which the defendants below excepted; and a verdict passed against them for $500 debt, and damages $11,46, being the amount of the costs for obtaining the attachment. After judgment, the defendants- below sued out a writ of error.