The opinion of the Court was delivered by

A new trial has been moved for on several grounds; but as the first alone is deemed sufficient ground for a new trial, it is only necessary to remark on that, viz., because the defendant, Jesse Anderson, having died before the issuing of a ca. sa. against him, the bail cannot be liable ; and, therefore, the plaintiff sustained no *damage from the refusal to assigu the bail-bond. I am satisfied that the rule which I laid down below, as to the liability of public officers, was a mistaken one. The defendant (Friday Arthur,) bad a right to de*152fend himself, on the ground that, the bail not being fixed, the plaintiff could not have sustained damages.

I do not give my decided opinion on the evidence; but from what appeared, it seemed to me that the fact of the death of Anderson, on the 17th of November, 1813, was certain and if this be satisfactorily proved, and that the defendant did not sustain any damage by the refusal to assign the bail-bond, the plaintiff ought not to recover more than nominal damages, and the consideration of the circumstances by the jury was no doubt prevented by the rule which I laid down as to public officers. The motion is granted.