Opinion
Fall Sessions, 1837.
Wales, for the bail.
Gilpin, for plaintiff.
The first suit stood on a return of "cepi corpus and bail bond." The second was an action, of debt on the bail bond.
The action against Camp was an action on the case in which Harker became his "appearance bail," or bail to the sheriff. At the return term the defendant failed to appear and put in special bail, whereupon the plaintiff took an assignment of the bail bond, and commenced this action.
Mr. Wales now moved, as counsel for the bail, to strike off the suit against him on payment of costs, and on entering special bail to the original action.
Gilpin objected. This is the second term, and I am entitled to judgment against the principal. If the defendant or his appearance bail had entered special bail at the return term according to the obligation of their bond, we could now have judgment.
The Court said they would place the parties in such condition as if the bail had done here duty by entering special bail at the last term.
We will let him in to defend the original action, as to the amount, due, on his paying costs in the action against him, entering an appearance and special bail in the original action, and confessing judgment therein, amount to be ascertained by the prothonotary.
NOTE. — The dispute was merely as to the amount due. (See Guthrie vs. Morrison, 1 Harr. 368.)