Bernard v. McKenna

delivered the opinion of the Court,

after stating the pleadings.

No exception is taken t.o the writ of scire facias, and the only question is to the validity of the second and third pleas.

The plea of lunacy is clearly bad; for the lunacy of the principal, after the bail was fixed, cannot be reason why the plaintiff should not have execution against the bail.

The question upon the demurrer to the third plea, is one of more difficulty.

At common law, the bail in all civil causes of arrest, was only bound to produce the body of the principal to answer the judgment ; and, according to the English practice in detinue, I presume there must have been a judgment against the principal for the alternative value, and a ca. sa. issued thereon and returned non est inventus, in order to charge the bail. It is not, however, necessary in a scire facias against the bail, in ordinary cases, to aver the issuing and return of the ca. sa. against the principal; it is sufficient to set forth the judgment, the recognizance of bail, and the breach of the condition of the recognizance, by averring that the principal had not paid the judgment nor rendered his body in execution. The want of a ca. sa. must be pleaded to the bail.

At common law, we apprehend, no distringas could issue against the bail in detinue, as it might against the principal; for the body of the principal is only delivered to the bail for safe keeping so that it may be had upon the execution. We can find in the books no execution against the bail in detinue, nor any dictum, that the obligation of the bail in detinue differed from the obligation of bail in debt; we conclude, therefore, that, as the law is in England, it would be a good plea to a scire facias against bail in detinue, to say that no ca. sa. was issued and returned against the principal before issuing the scire facias against the bail.

The bail, in debt, may discharge himself by paying the debt, or surrendering the body of the principal in execution. He has his option of one of two things; and if he does either he discharges his obligation. So in detinue the bail has the option of three things; to deliver the specific chattel sued for ; to pay the alternative value; or to render the body of the principal in execution. If he does either he is discharged.

The surrender of the., body of the principal in either case is sufficient. But, in debt, the plaintiff must first have a ca. sa. returned against the principal before he can charge the bail. A fieri facias returned nulla bona is not sufficient. It must be a ca. sa. So, in detinue, we see no reason why a distringas against the principal returned nulla bona should be sufficient to authorize the *133plaintiff to obtain execution against the bail. The judgment upon the scire facias would not confine the plaintiff to execution by way of distringas against the bail; but would be in general terms, that the plaintiff should have execution of the judgment against the bail; and the plaintiff might, thereupon, obtain either a dis-tringas, (if distringas will lie against the bail in detinue,) or fieri facias, or ca. sa. But it will hardly be contended that he should have a ca. sa. against the bail before he has had his ca. sa. against the principal. It is said, (but it does not appear in this record.) that the plaintiff obtained a distringas against the principal, which was returned nulla bona before the issuing of the scire facias, and that the distringas, as to the specific thing, has not been superseded ; and that, as the Act of Virginia of December 12th, 1792, §'26, p. 78, provides, “ that the bail-piece 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; ” the plaintiff may now have his execution, by way of distringas, against the bail.

Suppose, then, the Court, in this state of the cause,, should award a distringas against the bail, and should, afterwards, “ for good cause shown, direct it to be superseded, so far as relates to the specific thing, and to be executed for the alternative price or value only ” according to the Act of Virginia of 10th December, 1793, § 48, p. 305; would this be just when, if the same thing had been done in regard to the distringas against the principal, the alternative value might have been recovered against him ?

But, in the present case the bail-piece was “ not so changed as to subject the bail to the restitution of the thing or alternative value, as the court should adjudge.” The recognizance.of bail set forth in this scire facias leaves the option with the bail, in the same manner as in the recognizance of bail in debt. The only difference is, that, in the present case, the 'option is of three things, and in debt it is only of two. It is not left to the Court to adjudge to which the bail should be subject; the restitution of the thing; or the payment of the value; or the surrender of the principal, as the Act of Assembly provides. And if it were so left to the Court to adjudge, we should doubt whether the bail could be liable until the Court should have adjudged to which branch of the alternative the bail should be subject.

The bail is only a substitute for the gaoler, unless the Court should have adjudged him liable for the restitution of the thing sued for.

The Court, however, must decide this case upon the recognizance of bail as set forth in the scire facias; and that recognizance, in our opinion, gives the option to the bail, to discharge *134himself, by the surrender of the principal, exactly as in the case of bail in debt; we therefore think that the third plea is good, and that the judgment on the demurrer to that plea must .be for the defendant.