The case was that the plaintiff sued out his writ against Redding J. Hawkins and Figures Lowe, returnable to Halifax County Court, which was executed by the defendant Brickell, he being then the sheriff of said county, without taking any bail. The plaintiff prosecuted his suit regularly to judgment, and then sued out his ca. sa. against the defendants, to wit, Hawkins and Lowe. Hawkins was arrested under the ca. sa. by the sheriff Brickell, the defendant, and the execution returned non estinventus as to the defendant Lowe. This sci. fa. then issued to subject the defendant Brickell to the payment of the judgment against Hawkins and Lowe as the special bail of Lowe. Before the arrest of Hawkins he claimed the benefit of the act of the General Assembly passed for the relief of insolvent debtors, and gave to the sheriff a ca. sa. bond, as it is termed, that is, a bond for his personal appearance at the succeeding term of Halifax County Court to take the benefit of said act. Before the day upon which Hawkins was, by his bond, bound to appear he and the plaintiff came to an agreement that Hawkins should give the plaintiff Ferrall security for some other debts which he owed him, and Ferrall should release his claim against him under the judgment upon (68) which he had been arrested, and should withdraw all opposition to his discharge; and it is further stipulated that Ferrall should be at liberty to pursue his claim against Lowe and the defendant Brickell as his bail. Hawkins did secure the debts as agreed, and no further steps were taken by Ferrall upon the ca. sa. bond against him, but no release was executed. The jury found a verdict in favor of the plaintiff, subject to the question of law reserved for the consideration of the court. The presiding judge set aside the verdict, and gave judgment of nonsuit against the plaintiff, from which he appealed.
In the opinion of this Court, there was error in the judgment of nonsuit against the plaintiff, and we suspect the error was occasioned by not duly regarding the situation in which the parties stood at the time the agreement was entered into. The defendant Brickell, by not taking bail from the defendants Hawkins and Lowe, became under our law special bail, or bail to the action, and, as such, liable to all the responsibilities of bail; he became bound that the defendants should pay such judgments as might be recovered against them, or surrender their bodies. Both in England and in this State it is well settled that a plaintiff seeking redress against bail must first sue out an execution against the body of the principal, and have it returned, before he can proceed against the bail either by action of debt on the bond or by scire facias. But the ca. sa. answers, and it is intended to answer, a very different purpose there from what it does here. The bail in England stipulates merely for the delivery of the defendant, and not for the payment of the demand, and the plaintiff has the right to proceed either against the property or person of the defendant. It has, therefore, been held proper that he should do something plainly indicating his intention to proceed against the person in order to fix the bail. Petersdorf on Bail, p. 355; Wilmon v. Clark, 1 Lord Ray., 156; South v. Griffith, Cro. Car., 481. Upon the above principle 2 Sellon's Practice, 44, lays down the rule that if plaintiff sues out execution against (69) property of the principal, it is an election by him which discharges the bail. This doctrine has been long since overruled, and it is settled that plaintiff may make out a fieri facias against property of defendant, and, upon its proving unavailing, may issue his ca. sa., or may issue both at the same time, provided the latter is not executed until the former is returned, even where there is a partial payment on the fi. fa. Archbold's Practice, addenda, 13; McNair v. Ragland, 17 N.C. 42. The object of theca. sa., then, is to give the bail notice that the plaintiff has elected to go against the body of the defendant, and until he receives such notice he is not bound to surrender his principal. Petersdorf, 355, 359. It does not in England issue with any view to its execution. The sheriff is not guilty of any misfeasance in office by not executing it, for after it has lain in his office the last four days next before it is returnable, the plaintiff can compel him to return a non est inventus, although he may know where the defendant is. Petersdorf, 359; Hunt v. Cox, 3 Bur., 1360; 1 Black., 393; 2 Tidd, 1128, n. i. But the ca. sa. in this State was intended for a different purpose; not simply to notify the bail of the election the plaintiff had made, but to give to him the full benefit of the process.Finley v. Smith, 14 N.C. 248. By sec. 3, ch. 10, Revised Statutes, it is provided that "the plaintiff, after final judgment, shall not take out an execution against the bail until an execution be
first returned that the defendant is not to be found in his proper county, and until a scire facias has been made known to the bail, which scirefacias shall not issue until such return." Section 18, ch. 119, Revised Statutes, makes it the duty of the sheriff, under a heavy penalty, by himself or his lawful officer or deputy, to execute and duly return all writs and other process which shall be delivered to him twenty days before the sitting of the court to which they are made returnable. When, therefore, a plaintiff has taken out his execution against the body (70) of the defendant, directed to the proper county, and caused it to be placed, in proper time, in the hands of the proper officer, he has done all the law requires him to do to entitle himself to the benefit of the process against the bail; but not until the sheriff has returned he is not to be found in his proper county can he proceed; and the sheriff makes his return upon oath. It is not denied that if the plaintiff Ferrall had released to Hawkins the debt for which he had a judgment against him and Lowe, that the release would have operated to the benefit of Lowe and to the discharge of the bail, for a release to one coobligor is a release to all. Coke L., 252; 2 Bos. and P., 630. But there is no evidence in the case that any release was executed by Ferrall. So, if Ferrall, after Hawkins was arrested under the ca. sa. and while so in the custody of the sheriff, had discharged him from arrest, it would have discharged the debt also against Lowe, and consequently against the bail, because it would have been the act of the party himself. Bryanv. Simonton, 8 N.C. 51. At the time the agreement took place between Ferrall and Hawkins the latter was no longer in the custody of the sheriff. The defendant Brickell, as sheriff, had discharged his duty by making the arrest and taking the bond for the appearance of Hawkins, and as bail for Hawkins he was discharged the moment he was in custody upon the ca. sa. In Hawkins v. Hall, 38 N.C. 280, the Court say that when a debtor in custody under a ca. sa. tenders to the sheriff a bond, as prescribed in ch. 58, secs. 5, 8, Revised Statutes, that it is his duty to accept it and release the debtor from custody. The discharge, then, from actual custody or imprisonment is the act of the law or of the debtor under the law; consequently, the creditor is at liberty to proceed against any other person liable to the payment of the debt. But it is said the agreement not to oppose the discharge of Hawkins as an insolvent operated as a discharge to Lowe, and consequently to Brickell as the bail of Lowe. We are at a loss to perceive upon what principle his conclusion is founded. The plaintiff has done all the law required him to do. He has taken out his execution, as broad as his (71) judgment, and placed it in the hands of the proper officer, and he has done nothing to impede its full operation. Was he bound to oppose the discharge of Hawkins? In the case last referred to the court
say he was not bound, nor was the sheriff as bail in any manner concerned in the efforts to be made by Hawkins to procure his discharge under the insolvent law. Wistanly v. Head, 4 Taunt., 193. The agreement not to look to him for the debt for which Lowe was jointly bound did not operate as a release to Lowe, nor would it have had that operation if under seal. InHutton v. Eyn, 6 Taunt., 289, it is expressly decided that a covenant not to sue one of two joint obligors does not operate as a release to the other. Nor has it that operation when the covenant provides that if the suit is brought against the other obligor the covenant may be pleaded in bar. Dean v. Newhall, 8 Taunt., 168.
We are, therefore, of opinion that there is error in the judgment of his Honor; that the judgment of nonsuit must be set aside, and judgment entered for the plaintiff, with costs.
PER CURIAM. Reversed, and judgment for plaintiff.
Cited: Trice v. Turrentine, post, 238; Jackson v. Hampton, 32 N.C. 582.
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