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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,

2. “An execution against the body of the defendant, having and against

body. 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.

the action.

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 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

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* R. St. P.3. Ch. 6. T. 6. s. 31. Rep. 117. though it is not clear Vol. 2. p. 382.

whether a neglect in this respect Ib. s. 32.

could be pleaded by the bail as a 3 Johns. Rep. 514.

defence to the action, or was only 101 R. St. ib. s. 33. It was former. an irregularity to be taken advanly necessary, in order to fix the bail, tage of by motion. 16 Johns. Rep. that the ca. sa. should remain at 120. The statute settles this quesleast four days in the sheriff's of- tion, and gives the bail a more exfice; 13 East. Rep. 592. 16 Johns. tensive defence, allowing them to

cannot be

Where a ca. sa. is issued after two years,

102 without a scire facias to revive the judgment, the bail cannot take advantage of the objection.105

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.' Defendant 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.

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.12 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.

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

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plead that executions “were not 2 Saund. 72. b.
issued in sufficient time to enable * Ante, Vol. 1. p. 374.
the sheriff to execute the same." 9 1 Arch. Pract. 323. Reg. Gen.
Formerly too the want of a fi. fa. K. B. See appendix.
previous to a ca. sa. could not 10 2 Bos. & Pul. 235.
have been taken advantage of by Il 2 Johns. Cas. 283.
the bail. 16 Johns. Rep. 120.

13 6 Johns. Rep. 97. 102 See ante, Vol. 1. p. 52. 13 4 Johns. Rep. 407. 103 16 Johns. Rep. 120.

14.2 Johns. Cas. 283.

bail is by scire facias, the statute provides, that "it shall be scire facias necessary to serve such writ personally upon the defendant, conally 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.

writ of er

19

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 ;18 Costs of nor is the plaintiff entitled to levy equitable costs, out of the ror. penalty of the recognizance. 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

.

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.

returna

sa.

was

Vol. 2. p. 383.

16

" R. St. P. 3. Ch. 7. T. 6. s. 35. ordered, or to double the sum sworn

to in case of affidavit. 1 Bos. & 1 Cowen. Rep. 602. 1 East. Pul. 205. Rep. 91. and n. d. 1 Tidd. Pract. 18 6 Term Rep. 288. 304,5.

19 Str. 826. S. C. 1 Barnard. K. 1 Arch. Pract. 309. In the B. 125. common pleas in England each of 20 2 Johns. Cas. 405. the bail is liable to double the sum 21 3 Johns. Rep. 465.

17

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 bis bail, the court shall relieve such baji, on the same terms as if they had

surrendered their principal at the time of his death.""24 Imprison- The bail are discharged when their principal has been senment for life.

tenced to imprisonment for life,25 or for a long term of years in another state 526 but not when he has been imprisoned for a

term of years, within this state. 27 Insanity. They are not discharged on the ground of the insanity of

their principal, al:hough a commission of lupacy 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

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 ;31 and permission has been refused to amend the declaration by altering it from debt to case, in conformity with the ac etiam, so as to hold the bail still liable:32 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

Variance from ac etiam

' 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. 8. 34.
Vol. 2. p. 383.

25 2 Johns. Cas. 28.
26 18 Johns. Rep. 335.
27 6 Cowen, Rep. 599.

38 6 Term Rep. 133.
29 3 Bos. & Pul. 550.

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,

process was sued out against several defendants, and the plaintiffs declared only against one, 23 an exoneretur was not allowed to be entered, as the plaintiffs might declare de novo. 54

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.35

Where the defendant has been discharged under a bankrupt under bankor insolvent law, the bail will be relieved on motion, without rept sa insolthe formality of a surrender : of this we shall have occasion to speak in a subsequent part of this section.36

between

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 plażntiff 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.

It was formerly holden that a cognovit by the principal Cognovit.

38

36 See post.

32 6 Taunt. 483.

is otherwise in the common pleas. 101 3 Cowen. Rep. 354.

1 Tidd. Pract. 314. * See ante, Vol. 1. p. 416.417. 1 Maule & Selw. 56.

37 10 Johns. Rep. 595. 35 3 Lev. 335. Barnes, 116. It 38 10 Johns. Rep. 587. Vol. II.

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