Ansley v. Harris , 22 Ga. 616 ( 1857 )

By the Court.

Benning, J.

delivering the opinion.

Is a bail-bond made payable to the Sheriff, a good bail-bond ?

The Act of 1841, to define the mode of taking bail, declares that “all bonds taken in cases of bail in this State, shall be taken, payable to the plaintiff in the cause.” Cobb’s Dig. 482.

Is a bail-bond taken payable to the Sheriff, taken payable to the plaintiff in the cause ?

It is, according to Lane vs. Ford, and others, 8. Ga. 323.

That was the case of a sci.fa. by the plaintiff against the bail, on a bail-bond, made payable to the Sheriff, and not assigned by him to the plaintiff. And the decision was, that the sci.fa. was good.

Now, the sci.fa. could not have been good, unless the right to sue it out was in the plaintiff; but the right to sue out the sci. fa., could not have been in the plaintiff, unless the right to the bond was in the plaintiff; but the bond was payable to the Sheriff, and had not been assigned by him ; therefore, the right to the bond, could not have been in the plaintiff, unless.the bond being payabLe to the Sheriff, was the same thing as if it had been payable to the plaintiff; unless, in other words, the Sheriff, in taking the bond, was but the mere agent of the plaintiff.

The decision, therefore, in effect was, that the Sheriff in taking the bond, was the agent of the plaintiff; and that the bond, though, in fact, it,was payable to the Sheriff, yet, in law was payable to the plaintiff.

This decision was placed upon our statute, and we do not see why it should be disturbed; especially, as, even by the old law, the whole beneficial interest in the bail-bond, was in the plaintiff

See too U. S. vs. Morgan, 3. W. Ct. Rep. 10., U. S. vs. Smith, and others, 3. Hall Am. Law Jour. 458.

We think, therefore, that the judgment of the Court below ought to be affirmed.:

Judgment affirmed.