Matthison v. Forbus

delivered the opinion of the Court. The defendant must have judgment. The plaintiff’s attorney has mistaken the practice of the Court. The plaintiff ought not to have put in bail$ but should have paid the debt and costs of the action, and of the proceedings on the attachment, and then sued on the báíl bond. (1 Tidd’s Pr. 262.) The defendant in the original action has appeared to that suit, by putting in special bail, by Barnard. It is true, that the bail was given at the instance of the plaintiff; but that is immaterial ; it is an appearance according to the exigency of the bail bond; and on the plea of comperuit ad diem, as by the record, &c. there can be no inquiry who caused special bail to be filed. Whether the plaintiff can have a remedy against the defendant, after satisfying the original judgment, as for so much paid for the defendant, is not a matter of inquiry here ; but that, at all events, is his only remedy.

Judgment for the defendant.