OPINION of the Court, by

This was an action against the shet-iff and Ills security for having failed to take a sufficient bail bond in a former suit brought by the plaintiff.

On a demurrer to the declaration, the court below gave judgment for the defendants, to reverse which the plaintiffs prosecute this writ Of error.

We are of ¡.opinion the court below properly sustained the demurrer. The declaration contains no averment that the defendant in the former suit failed to ap pear; and if he did appear, it is plain that the plaintiff could have sustained no in jury for want of asufficientbail bond: for in that case, although a sufficient bail bond had been taken, the plaintiff could not have proceeded against the bail.

But on another ground, we apprehend, the plaintiff has failed to show a right to maintain his action. It appears that the bond taken by the sheriff in the former suit, for the appearance of the defendant, was taken payable to the plaintiff in the action, - instead of being made payable to the sheriff; and such a bond is declared by law to be null and void — 1 Litt. 584. The plaintiff, therefore, might have treated it as a mere nullity, and proceeded to take his judgment against the defendant and sheriff in the same manner as he might have done if no bond had been returned. But instead of doing so, it is apparent from his own showing that he has proceeded against the defendant only ; and according to the principles of the case of Lee vs. Price, (1 Bibb 434) he has by Waiving his right to proceed in the mode prescribed by the statute in such a case, forever lost his remedy against the sheriff.

Judgment affirmed with costs.