'x'The opinion of the Court was delivered by

This case has been decided by the Court on various occasions, and indeed admits of no doubt. 1 Con. Rep. 319.

By the Act1 of 1809, all bail are now to be considered as special bail, (that is, bail above, or bail to the action,) and by the common law, it is only necessary to issue a ca. sa. and have a return of non est inventus, in order to proceed against this kind of bail; and this is obvious from the stipulations and responsibilities of *bail to the action, which *510] are, that they will pay the debt or render the body of the principal.

Now why issue an execution against the principal ? It is unnecessary to say the least; the ca. sa. is a demand on the bail to deliver the body, or pay the debt; if they fail to do the first, they may do the second act; if they fail to do the latter, they must do the former; and a scire facias issues against them to compel payment.

It may be of importance to remark on the use of the term, in the Act of 1185,2 that Mr. Pendleton, who introduced the Act, has clearly misapplied the terms, common and special bail, and hence arose great confusion. By the common law, Tidd’s Prac. 211, Com. Dig. tit. Bail, common bail were merely nominal. John Doe and Richard Roe. The object was to give jurisdiction to the Court. Special bail was bail below, or bail to the sheriff, which was two or more real and responsible persons, who stipulated that if the defendant be condemned in the action, he shall satisfy the costs and condemnation, or render himself to the custody of the sheriff, or that they will pay the costs of condemnation for him. Tidd’s Prac. 211. Com. Dig. tit. Bail. These bail might afterwards become bail to the action, or bail above, by which they acquired the right to surrender the principal, in ease he did not surrender himself, or comply with the other conditions of the recognizance.

By the Act of 1185, when common bail is mentioned, bail to the sheriff, or special bail, is meant; and when the term, special bail, is mentioned, bail to the action, or bail above, is intended. Thi.s explanation of the use and meaning of the terms, common and special bail, is necessary to the correct understanding of the decisions of our Courts and construction of our Acts.

It is, then, clear, that no other execution than a ca. sa. is necessary, before proceedings are had against the bail. The motion is discharged.