This day came the plaintiff by his attorney, and the defendant being called, came not; whereupon, the plaintiff being heard, and all and singular the premises being seen, and by the court fully understood, it seems to the court that there is error in the record and proceedings of the judgment aforesaid, in this, judgment is rendered against the said plaintiff, as sheriff of said county, for not taking appearance bail, whereas the return by his deputy to whom the process against Gilpin was delivered, is sufficiently legal to excuse the not returning of bail, under the act of assembly. Therefore, it is considered by the court, that the judgment aforesaid be reversed and set aside; that the cause be remanded to the court from whence it came, for new proceedings to be had therein, to commence at the taking the common order; and that the plaintiff recover of the defendant his costs in this behalf expended; and that the same be certified to said court.