against pro 1. "An execution against the property of the defendant Execution shall have been issued to the sheriff of the county in which perty, such defendant was originally arrested, and the same shall have been returned by such sheriff unsatisfied, in whole or in part; and, body. 2. "An execution against the body of the defendant, having and against at least fifteen days between the test and return day thereof, shall have been issued to the same sheriff, and by him returned, that the defendant could not be found within his county."4 Upon the execution being issued and delivered to the sheriff, it is his duty to use all reasonable endeavours to execute the same, notwithstanding any directions he may receive from the plaintiff or his attorney; and the ca. sa. must be actually returned not found, before a suit can be commenced against the bail. bail may defence to The statute further provides, that "in such action against What the the bail, they may plead that executions against the property plead as a and against the body of the defendant in the original suit, were the action. not issued as herein directed; or that they were not issued in sufficient time to enable the sheriff to execute the same; or that directions were given by the plaintiff or his attorney, to prevent the service of the said writs, or either of them; or that any other fraudulent or collusive means were used to prevent such service; and if any such defence be established, it shall entitle the bail to a verdict."101 4 R. St. P. 3. Ch. 6. T. 6. s. 31. Rep. 117. though it is not clear Vol. 2. p. 382. Ib. s. 32. 6 3 Johns. Rep. 514. 101 R. St. ib. s. 33. It was formerly necessary, in order to fix the bail, that the ca. sa. should remain at least four days in the sheriff's office; 13 East. Rep. 592. 16 Johns. whether a neglect in this respect Defendant cannot be 102 without a scire Where a ca. sa. is issued after two years,' facias to revive the judgment, the bail cannot take advantage of the objection.103 We have before mentioned that bail may be proceeded against either by scire facias, or action of debt; and the plaintiff has the option of bringing the action against both of the bail, or separate actions against each." 8 The defendant cannot be held to bail in the action, yet it held to bail. seems necessary that the writ should contain an ac etiam clause.9 The capias against the bail may be tested before the return of the ca. sa. against the principal if in fact it be not sued out until afterwards.10 Judgment having been recovered against the bail, the plaintiff has his election either to take an execution against the body of the defendant or his bail; but he cannot have both; and as by taking the defendant on a ca. sa. in the original action, the bail are discharged," so if the bail are taken in execution, the plaintiff cannot afterwards resort to the principal. But by issuing a fi. fa. on the judgment, the plaintiff' does not preclude himself from afterwards proceeding against the bail, although part of the debt is levied ;13 and indeed this mode of procedure is, as we have seen, absolutely necessary by the revised statutes, in order to charge the bail. 12 When the bail are discharged by the taking of the defendant in execution, it is not usual nor necessary to enter an exoneretur on the bail piece.14 Where the proceeding against the plead that executions "were not 72 Saund. 72. b. Ante, Vol. 1. p. 374. 9 1 Arch. Pract. 323. Reg. Gen. K. B. See appendix. 10 2 Bos. & Pul. 235. must be per bail is by scire facias, the statute provides, that "it shall be scire facias necessary to serve such writ personally upon the defendant, T sonally servand to have the same duly returned that it has been so served; and no further proceedings shall be had until such writ shall be so returned."'15 LIABILITY OF BAIL, AND HOW DISCHARGED. liability. .18 Costs of The bail are liable for the sum recovered by the plaintiff, Extent of with costs of suit ; provided, it seems, that it does not exceed the sum in the ac etiam,16 or if the defendant were holden to bail under a judge's order, the sum contained in the order.17 But they are not liable to pay the costs of a writ of error; nor is the plaintiff entitled to levy equitable costs, out of the ror. penalty of the recognizance.19 And they are liable to interest on the judgment against the principal, only from the expiration of the time allowed them ex gratia to surrender.20 Where on a return of non est inventus, on the ca. sa. against the principal, the bail gave a note for the amount of the judgment, and the judgment was afterwards reversed on a writ of error; it was held that there was a failure of the consideration of the note, and that the plaintiff was not entitled to recover.21 writ of er principal. As the law formerly was, if the principal died at any time Death of before the return of the ca. sa., the bail were thereby discharged; but if he died after the ca. sa. was returna 15 R. St. P. 3. Ch. 7. T. 6. s. 35. ordered, or to double the sum sworn to in case of affidavit. 1 Bos. & Pul. 205. Vol. 2. p. 383. 16 1 Cowen. Rep. 602. 1 East. Rep. 91. and n. d. 1 Tidd. Pract. 304, 5. " 1 Arch. Pract. 309. In the common pleas in England each of the bail is liable to double the sum 18 6 Term Rep. 288. 19 Str. 826. S. C. 1 Barnard. K. 20 2 Johns. Cas. 405. Imprisonment for life. Insanity. from ac etiam. ble,22 although it seems before the return was filed,23 the bail were fixed, and the court could not have relieved them. But it is now provided by the statute, that "when the defendant in a suit shall die, after the return of the execution against his body, and before the expiration of eight days from the return of the process served on his bail, the court shall relieve such baii, on the same terms as if they had surrendered their principal at the time of his death."24 The bail are discharged when their principal has been sentenced to imprisonment for life,25 or for a long term of years in another state;26 but not when he has been imprisoned for a term of years, within this state.27 They are not discharged on the ground of the insanity of their principal, although a commission of lunacy may have issued against him, under which he has been found a lunatic;28 but they may have a habeas corpus to bring him up, in order to surrender him in their discharge.29 Where the plaintiff having filed a bill in equity, and arrested the defendant for the same cause of action, had in consequence of an order out of chancery, for that purpose, elected to proceed in equity, the court refused to discharge the bail, but left them to move to set aside any proceedings which might be taken against them.30 Variance. If the declaration be for a cause of action different from that expressed in the ac etiam clause of the writ, an exoneretur will be ordered with costs; and permission has been refused to amend the declaration by altering it from debt to case, in 22 Str. 511. 717. 2 Ld. Raym. 1452. 2 Wils. 65. Cro. Car. 165. 2 Johns. Rep. 407. 23 6 Term Rep. 284. 24 R. St. P. 3. Ch. 6. T. 6. s. 34. Vol. 2. p. 383. 25 2 Johns. Cas. 28. 28 6 Term Rep. 133. 30 7 Taunt. 235. S. C. 2 Marsh. 548. 31 4 Cowen. Rep. 426. 2 H.Black. Rep. 278. 2 Bos. & Pul. 358. et. vide 1 Cowen. Rep. 601. 4 Johns. Rep. 485. conformity with the ac etiam, so as to hold the bail still liable:$2 but the bail have no right before the plaintiff has declared to object to an amendment in the ac etiam of the writ.101 Where bailable process was sued out against several defendants, and the plaintiffs declared only against one, an exoneretur was not allowed to be entered, as the plaintiffs might declare de Bovo.34 In an action by original, according to the practice of the king's bench, if the plaintiff declare in a different county from that in which the suit was brought, the bail are entitled to an exoneretur. $5 Discharge Where the defendant has been discharged under a bankrupt under bankor insolvent law, the bail will be relieved on motion, without vent law. the formality of a surrender of this we shall have occasion : to speak in a subsequent part of this section.36 between defendant. Any agreement between the plaintiff and defendant, with- Agreement out the assent of the bail, by which their situation is materially plaintiff and changed, and their risk greatly increased, will exonerate them from their responsibility. 37 Thus where a plaintiff made a written agreement, with the defendant, against whom he had obtained judgment, and who was about going to sea, that he would not issue execution against him for the purpose of fixing the bail, until after a certain day, and the defendant paid the plaintiff a sum of money in consideration of this indulgence; the arrangement, being without the knowledge and consent of the bail, was held to discharge them: and the bail being prosecuted on the recognizance, and their remedy at law being considered doubtful, it was held that a court of equity might afford relief, and grant a perpetual injunction.38 It was formerly holden that a cognovit by the principal Cognovit. |