Act of February 25, 1819—January 1, 1820. R. C. ch. 128.

zance aforementioned, a bail piece,(7) in substance as followeth, to wit: County, (or corporation,) se: C. D. of the parish of in the county (or corporation) aforesaid, is delivered to bail, on a cepi corpus, unto E. F. of the parish and county (or corporation) aforesaid, at the suit of A. B. Given under my hand this G. H. 1788, c. 28; 1792, c. 76,

15.53. In actions of detinue, the recognizance of bail shall be so changed, as to subject the bail to the restitution of the thing, whether animate or inanimate, sued for, or the alternative value, as the court may adjudge.(b) If the plaintiff, or his attorney, shall except to the sufficiency of any special bail so taken out of court, notice of such exception shall be given to the defendant, or his attorney, a reasonable time before the same shall be tried. And if such bail shall be adjudged insufficient by the court, the recognizance thereof shall be discharged, and such proceedings shall be had, as if no such bail had been taken. 1788, c. 67; 1792, c. 66, R. C.

16. 54. Every special(g) bail may surrender the principal, before the court where the suit hath been or shall be depending, at any time either before or after judgment shall be given: Provided, That such surrender(2) be made before the appearance day(3) of the first scire facias against the bail, returned executed,(4) or of the second returned nihil: (5)(n) but, in either case, the

Act of February 25, 1819-January 1, 1820. R. C. ch. 128.

special bail shall pay the costs of the scire facias, and judgment for the same shall be entered against him accordingly.(a) Upon such surrender, the bail shall be discharged, and the defendant or defendants shall be committed to the custody of the sheriff or jailor attending such court, if the plaintiff or his attorney shall desire the same. Or such special bail may discharge himself or herself, by surrendering(o) the principal or principals to the sheriff, serjeant or jailor of the county or corporation where the original writ was served; and such sheriff, serjeant or jailor shall receive such defendant or defendants, and commit him, her or them, to the jail of his county or corporation, and shall give a receipt for the body or bodies of such defendant or defendants, which(p) shall be by the bail transmitted to the clerk of the court where the suit is or was depending, to be preserved and filed by him amongst the papers of such suit. The bail shall forthwith give notice of such render to the plaintiff, his agent or attorney at law, if to be found within the county or corporation. When such surrender after judgment,(g) shall be to the sheriff, serjeant or jailor,(1) he shall keep such defendant or defendants in his custody, in the same manner, and subject to the like rules, as are provided for debtors committed in execution, for twenty days, unless the creditor, his agent or attorney, shall sooner consent to his, her or their discharge; and if within the said twenty days such creditor, his attorney or agent, shall not in writing, (r) charge the debtor or debtors in execution, he, she or they shall be forthwith discharged

agst. special bail may be made returnable at rules, in the clerk's office. When a sci. fa. against special bail is returnable at rules on the first Monday of the month, the return day is the appearance day, and the process being returned executed, a surrender of the principal on the return day, is not in time to discharge the bail, under this (54) §. Ibid. But see Act 5 Mar. 1824, Supp. R. C. 207. (n) If the scire facias be made returnable to an improper term, it is merely void, and should be quashed. Bogle et al. v. Fitzhugh, 2 Wash. 213.

On a writ of scire facias against bail, a return by the sheriff, that the defendant is no inhabitant of his bailiwick, and is not found within the same, is not a sufficient return of nihil: it should also have been stated, that, he had nothing in his bailiwick by which he could be summoned. Lee et al. v. Chilton, 5 Munf. 407.

If two writs of scire facias be successively issued, the returns on which are both defective; and the defendant, after pleading specially, obtain leave to withdraw his plea, as having been improvidently pleaded; the court ought not thereon to permit the sheriff to amend both his returns, but only that on the first writ; quashing the second, and remanding the cause to the rules, to be farther proceeded in. Ibid.; The Com'th v. Brickett, 8 Pick. R. 138.

(a) In a joint action of debt against three obligors, three persons severally undertake, by several recognizances, as special bail for each of the three defs. ; after judgment, creditor sues out one sci. fa. against the three bail on their several recognizances: Held, they cannot be joined in one sci. fa. and that the sci. fa. is naught, and to be quashed.

A demurrer to a sci. fa. on recognizance of special bail, is regular practice. Garland v. Ellis, 2 Leigh, 555.

(0) (p) If the special bail, either before or after judgment, surrender his principal to the sheriff, his discharge is complete by such surrender, whether he return the sheriff's receipt forthwith to the clerk, or not. The provisions respecting the returning of the receipt, are directory; they do not impose a condition, the non-compliance with which, will prevent the discharge of the bail. If any injury result to the plaintiff on account of a failure to make such return, his remedy is against the bail in a special action on the case. Cooke v. Beal's ex'r, 1 Wash. 313.

If bail be bound in a recognizance, for two defendants; a surrender after judgment of one of them, in due form;-a discharge of that one by the plaintiff's written order, the plaintiff not having charged him in execution, is no satisfaction of the judgment, nor discharge of the bail. Higginbotham v. Browns, 4 Munf. 516.

(q) (r) A debtor being surrendered to the sheriff by his special bail, after judgment, cannot legally be detained in custody, more than twenty days, from the time of such surrender, if the creditor, his agent or attorney, do not within that time, charge him in execution, in writing. Green v. Garrett, 3

Munf. 339.

(1) It shall be lawful for such principal to discharge himself or herself from custody, by taking the oath of insolvency, in like manner, and subject to the same regulations as are prescribed in cases where debtors are taken under a ca. sa. Act Jan'y 5, 1832, ch. 28, p. 27.

Act of February 25, 1819-January 1, 1820. R. C. ch. 128.

out of custody. But the plaintiff or plaintiffs may nevertheless afterwards sue out any legal execution, without suing out a scire facias.(s) Ibid. Nov. 1645, act 14, 1 Stat. Larg. 305; Oct. 1765, c. 22, § 4, 5, 6, 8 Stat. Larg. 120.

17.55. When the principal debtor now is or hereafter may be imprisoned, in any jail in the commowealth, by virtue of process from any court, or any civil officer; and any person or persons, his special bail, shall desire to surrender such debtor, in discharge of the recognizance of bail; it shall be lawful for such bail to obtain a certified copy of such recognizance, either from the clerk where the same shall have been entered in court, or returned thereto, or from the judge or justice who shall have taken it, where such recognizance shall not have been returned to court; (which copy it shall be the duty of the clerk, judge or justice to grant ;) and to obtain, annexed to such copy of the recognizance, a certificate from the clerk of the court, stating the situation of the suit, in which such bail hath been entered, and specifying particularly whether final judgment hath been rendered therein, or the same be still pending: and it shall be lawful for the bail to deliver the said certified copy of the recognizance, and the said certificate of the clerk, to the sheriff, serjeant or jailor, in whose custody the debtor may be, and to demand a receipt therefor. Such sheriff, serjeant or jailor shall thereupon give to the bail, his agent or attorney, a receipt for the said copy of the recognizance and certificate of the clerk, in which shall moreover be expressed, that the special bail, in discharge of his recognizance aforesaid, had committed to the keeping of the said sheriff, serjeant or jailor, the body of the debtor then in the custody of such sheriff, serjeant or jailor, under process from some court or civil officer of the commonwealth, which process shall be plainly described on the face of such receipt. The debtor so committed shall be detained in custody by such sheriff, serjeant or jailor, in the same manner, as he ought by law to be detained when surrendered under the provisions of the preceding section; save only, that where such commitment shall be after final judgment, and to the sheriff, serjeant or jailor in any county or corporation, other than that in which the suit was brought, such debtor, unless sooner discharged by the consent of the plaintiff, his agent or attorney, shall be detained in custody above twenty days, at the rate of one day for every twenty miles of the computed distance of the place of his confinement, from the jail of the court in which the suit was brought. The special bail shall immediately give notice of such commitment, to the creditor, his agent or attorney at law, if to be found in the county or corporation wherein the suit is or was depending, and shall file with the clerk of the court in which such suit is or was depending, the receipt of the sheriff, serjeant or jailor, taken as aforesaid, and take his receipt therefor. Jan. 8, 1805, c. 49, ed. 1508.

18. 56. When, pursuant to the provisions of this act, the special bail shall have surrendered his principal to the custody of the sheriff, serjeant or jailor, or shall have committed him to the keeping of the sheriff, serjeant or jailor, in whose custody such principal was before, and shall exhibit before the court, in which the suit is or was depending, satisfactory evidence, that, in due time thereafter, he gave to the creditor, his agent or attorney, such notice of the surrender or commitment, as is hereby required; or that such creditor, his agent or attorney was not to be found in the county or corporation aforesaid, and that in due time he filed with the clerk of the court the receipt of the sheriff, serjeant or jailor, taken as aforesaid; such bail shall thereupon be entitled

(s) A surrender of a principal by his bail, either before or after judgment, and his discharge from custody, without being charged in execution, is no bar to a capias ad satis

faciendum against him, whether such discharge was by order of the plaintiff, or not. Higginbotham v. Browns, 4 Munf. 516.

Act of February 25, 1819-January 1, 1820. R. C. ch. 128.

to an exoneretur, to be entered in court, and shall be thereafter forever discharged from the said recognizance, in the same manner as if he had surrendered his principal in court. But no such exoneretur shall be entered, unless the creditor, his agent or attorney be present in court, or have reasonable notice of the application therefor. Alt. from ibid.

19. § 57. Any defendant surrendered into custody, or committed by his bail, in manner herein provided, may, at any time before final judgment shall have been rendered in the action, discharge himself from such surrender or commitment, by giving other good special bail: Provided, That the sufficiency of such bail shall be verified on oath, to the satisfaction of the court, judge or justice, taking the same, and the recognizance thereof shall be duly filed with the clerk of the court wherein the suit is depending, before such defendant shall be discharged. 'Ibid.

20. 58. If any defendant, having given special bail in any action, shall afterwards be convicted of any crime, and sentenced therefor to confinement in the penitentiary of this state, by a court of this commonwealth, or of the United States, or shall be lawfully arrested, and delivered over to the executive authority of the United States, or of any state or territory thereof, upon a charge of any crime committed out of the jurisdiction of this state, and shall thereupon be carried beyond the limits of this commonwealth, such special bail shall be discharged from his recognizance, in the same manner as if such defendant had died at the time of such sentence, or of such delivery. Rev. 1819. 21. § 59. When the sheriff or other proper officer shall return upon any original or mesne process, that he hath taken the body of the defendant, and committed him to prison for want of appearance bail, the plaintiff may proceed, and the defendant make his defence, in like manner, as if his appearance bail had been entered and accepted. But the defendant shall not be discharged out of custody, until he shall put in good bail, or the plaintiff shall be ruled by the court to accept an appearance without bail. And, when any defendant, after appearance entered, shall be confined in prison, the plaintiff may proceed in the same manner as if he were not so confined. From Feb. 1727, c. 3, 4 Stat. Larg. 185; Oct. 1748, c. 59, 6 Stat. Larg. 204; see 1792, c. 66, R. C. ; Am. at Rev. 1819.

22. § 60. When the sheriff or other proper officer, returning the truth of the case, upon any original or mesne process, to him directed, shall make return, that any defendant is not an inhabitant of his county or corporation, [see tit. SHERIFF, No. 21,] the suit shall abate and be dismissed as to such defendant,(t) if the court, from which such process issued, have jurisdiction over such county or corporation only. Ibid. c. 76.

23. § 61. When the sheriff or other proper officer shall return on any writ of capias, to answer in any civil action, that the defendant is not found within his bailiwick, [see tit. SHERIFF, No. 21,] the plaintiff may(u) either sue out an

(t) See Brown v. Belches, 1 Wash. 9.

(u) In the case of Barton v. Petit et al. (Feb. 7, 1812,) 7 Cranch, 194, 202, it was held (Washington, J. delivering the opinion of the court,) that, the plaintiff must pursue one or other of these modes, if he brings a joint action against several, and the return be non est. as to some, before he can proceed against the others. The general rule being, that if two or more persons are sued in a joint action, the plaintiff cannot proceed to obtain judgment against one alone, but must wait until the others have been served with process, or until the other defendants have

been proceeded against as far as the law authorizes, for the purpose of forcing an ap

pearance.

In the case of Moss et al. v. Moss's adm'r, (Oct. 1809,) 4 H. & M. 293, which was an action on a joint and several bond, against six obligors, the capias ad respondendum, was only executed on two: it was held, that plaintiff was not bound to sue out further process against the rest, but might take judgment against those two.

The uniform practice in the old general court, where there were several defendants and only part arrested, was to proceed to

Act of February 25, 1819-January 1, 1820. R. C. ch. 128.

alias or a pluries capias, until the defendant shall be arrested, or a testatum capias, where the defendant shall have gone into another county or corporation; or may, at his election, sue out an attachment(a) against the estate of the defendant, to force an appearance; and if the sheriff or other officer shall return that he hath attached any goods, and the defendant shall not appear and replevy the same, by entering his appearance and giving special bail, in case he shall be ruled so to do, the plaintiff may file his declaration, and proceed to final judgment, in the same manner as if the defendant had been arrested.(1)