Jackson v. Hampton.

32 N.C. 579 | N.C. | 1849

Lead Opinion

Ruffin, C. J.

The decision of this Court in the case of Trice v. Turrentine, 5 Ire. 236, and in that of Waugh v. Hampton, at the same term, was the authority which governed the presiding Judge in this case, and the present appeal was designed to bring that, decision under review. It was given with hesitation by a divided Court. After taking time for deliberation and maturely reflecting on the reasons given in those cases, the Court, believing the opinion to be erroneous, is constrained, though reluctantly. to hold it so. The opinion delivered laid down a position entirely new to the Profession, and in opposition toa course which had been alwa3rs practised in this State. There had been many judgments against bail of one defendant on non est inventus returned as to him, because he could not be found, and returned, as of course, in respect to the others, by the direction of the plaintiff not to take or to look for them ; and there can be little doubt but that the same would have been done in those cases and in the present, if the sheriffs had not happened to be the bail. It is manifest upon the face of the opinion, as delivered by our late learned Brother Daníel, that the judgment rests upon this position: That when a judgment is taken against two or more, as between all of them and the bail of one, they are all principal debtors, and the bail stands as surety for all the defendants. He does not, indeed, lay down the proposition quite so explicitly as that — as he would, doubtless, have done, if he had seen his way as clearly as he usually did. But that is the necessary effect of what he does say. His words are: “that the legislature considered all the defendants as principal debtors, and the bail of all or any of the defendants as quasi sureties only ; and before these sureties [bail] should be looked to by the plaintiff for the debt, he should show by a ca. sa. returned non est inventus as to all the principals, that he had been unable to get his debt” — that is, from either of them. That position is, we think, essentially wrong; and, as it lies at the loundation of the opinion, the whole must fall together. The error consists in regarding the bail of one defendant as the surety of another, or that any person is the principal of the bail except him, for whom he became bound by the bail bond. The sheriff, indeed, does not give a bond, but becomes bound by law as special bail, if he fail to return a sufficient bond given by other bail. But it is admitted in the opinion, that can make no difference, and that he is to be regarded ns if he had given a separate bond as the bail of Forkner ; for, bail is always taken for each defendant separately, and the sheriff cannot prejudice the plaintiff by becoming bail under the statute instead of taking a bond from other sureties. Now, if several bonds be given hy different bail for the different defendants respectively, we must deny positively, that the bail in one of those bonds can be deemed the bail of another defendant, or his surety, or ,quasi surety, to any purpose whatever. The term “quasi,’' as here used, has no meaning or legal effect, but is calculated only to mislead. One must, be surety for another» or not; for there is no middle state or relation Then.it seems clear, that the bail and surety for one is not the surety for the other, more than he is his bail. He becomes bound'solely by becoming bail, and he is bound as surety as far as he is bound as bail and no further. It follows, that his right, of indemnity goes to the same extent, and no further. Judge Daniel must have felt that to be so ; and that induced him to use the qualifying phrase, “quasi sureties,” which, however, served not to help on his argument, but only to perplex the question the more. When one man is surety for another, he has a right to be made whole by the principal for any loss sustained thereby, and to contribution from any other bound as surety for the same debt. That is inherent in the relations of principal, surety, and co-surety, and every Court recognises it, which takes cognizance of questions between persons in those relations. Yet it is distinctly admitted in the opinion, that there is no such right to indemnity or contribution from one defendant or his bail to the bail of another. Indeed, it was expressly held so, in Osborne v. Cuningham 4 Dev. & Bat. 423 ; and in Ferrall v. Brickell 5 Ire. 67. Judge Nash, in delivering the opinion of the Court, said, that “the sheriff, as bail,” — that is, for Lowe, who was not taken — “was 4not in any manner concerned, in the effort to be made by Hawkins” — who was the other debtor — “to procure his discharge under the insolvent law.” That must be seen to be so, wrhen one reflects, that there is no mode by which a person can become surety for another but by contract; and that the contract of bail is in a prescribed form, which in terms is restricted to his one principal. That consideration by itself ought, it would seem, to be conclusive on the point. But its force was avoided by the observation, that, although the bail oí one defendant is not entitled to indemnity or contribution from another, yet he has an interest, that all the defendants shall be brought in, because, peradventure, one of them, for whom, the bail is not bound, might show that the debt has been paid, or might then be induced to pay it, and so the bail-might get off without either paying any money or rendering his principal. True, he might. But the question recurs, ought he to get rid of his engagement in that way ? Has he a right so to do ? Now, it is obvious, that one of the original defendants has precisely the same interest, that the creditor should bring in his co-defendants, which, w'hen existing in the bail of one, is supposed to create the obligation on the creditor to take all the debtors, if he can. For, one defendant may, with as much truth, say to the creditor, your judgment is against two, and therefore each ought to pay his half, and you ought not to imprison me for the whole debt, because, if you would take the other man also, he might show that he has paid his half, or might be induced by the imprisonment to pay it now. As far as the interest of one defendant and the bail of that defendant goes or can,operate upon the question, it is the same in each. But has either of them the right to demand of the creditor thus to imprison all the debtors? Plainly not, in the one case more than in the other ; for the right depends upon the interest of the several parties, and that has been shown to be the same in each, But, without pressing that point farther, there are other observations to be made upon the proposition. The first is, that it is a total departure from the principle, on •which the opinion sets out, as the foundation of this right ■in the bail, namely, that of suretyship. This view leaves that notion out of sight, and, consequently, the idea of indemnity is abandoned. A proposition, distinct from the ■other and entirely new, is brought forward: that, by vir-tue of the requirement in the statute of a ca. sa. returned non est inventus before the sci.fa. against bail, there is an obligation on the creditor to take all the original defendants, if he can, before he can have recourse to the bail of one, who had fled the country. Now, that seems to be •a complete begging of the question. Whence arises that obligation — how is it to be inferred ? The statute, indeed, requires the ca. sa., and it must be as broad as the judgment, and therefore run against all the defendants. .Still, as the bail is bound but for one, where is his right to require the creditor to take any body but the one, for whom he is bound ? If his principal be taken, the bail is .instantly discharged. By what? Not by his principal’s ■paying the debt, but by the taking merely. For, that .was the contract of the bail — that he would render his principal, if he did not render himself. But the rendering ■or taking of another defendant leaves the obligation of the bail precisely as it was before. He is still bound to render his principal or pay the money ; and the creditor, while having one defendant in jail, may levy the money ■from the bail of another. Suppose'he should ; how, then, do those parties stand to each other ? Why the imprisoned defendant is immediately discharged, because the debt ■is paid ; and yet the bail, whose money paid this man’s debt and turned him out of prison, and who is said to Stand as quasi surety for him, cannot get one copper- from • him, who is thus discharged from debt and imprisonment. For, that was the adjudication in the two cases before cited 5 and in each it was clearly right, as we think, inasmuch as the contract of the bail is for and with his own principal and him only. The case of Osborne v. Cunningham is particularly strong, because the defendant, as we collect from the statement, may have been not only a joint debtor in form, but in fact. But, if it were otherwise, and he was the surety of Patton, it is much the-same ; for, in that case, the original surety and the bail for the principal debtor would have stood in the relation of co sureties ; and to meet that view the defendant offered to show, that he had paid one half of the debt before, the suit, but the Court would not hear the evidence, be.cause there was no privity between them and therefore the bail could not recover under any circumstances. But there is another observation, which seems very material. If the bail of one has such an interest in the creditor’s pursuing all the defendants as to amount to a right in the bail to require him to do so — because, as it is said, it may be, that he would not have bound himself for that one, if' the others had not been parties — then, plainly, the creditor ought to be bound- to prosecute all the original defendants to judgment. For, there is no substantial difference, as far as the bail’s liability and interest is involved, bet-tween letting off the solvent defendant before judgment, and declining to imprison him afterwards. Yet it was held in Bradhurst v. Pearson, 10 Ire. 55, that the sheriff was the bail of each separately, and that the plaintiff’s entering a nonpros, as to one defendant did not discharge the bail of the other. Those cases show, that the law. cannot look out of the contract of bail for his liability, or undertake in proceedings against bail to redress collateral inconveniences on the one side or the other. Some of these inconveniences to the bail are adduced in the opinion under consideration, as reasons for the extraordinary privilege there extended to him. It is said, for example, that a solvent defendant may be here, and yet the bail of the other made liable, although his principal may have become insolvent and fled — -which is adduced as a hardship. Rut, necessarily, it is none at all; nor generally would it be one. In the first place, it is to be replied to the bail, that he bound himself to render his principal, and the very case, which his obligation was intended to cover, has happened, namely, the flight of his principal beyond the process of the Court. In the next place, he is not bound to pay the debt, if he will render his principal; and to that purpose his solvency or insolvency is not material ; and, indeed, he cannot know that his principal would not be able to procure the means of payment, if surrendered. In the third place, he cannot know that his principal is not the primary debtor, and the very man who ought to stand not only before him but before the other defendants in the judgment — he being the principal debtor and the others his sureties. Suppose this last to be the case ; then the creditor, so far from pressing payment out of the original surety by ca. sa., it seems, is under an equitable obligation of benevolence to him to get payment from the bail of the principal rather than from the surety. For, in Parsons v. Briddock, 2 Vern. 608, it was decreed, where the principal was sued and gave bail, and afterwards an original surety paid the debtt that such surety was entitled to an assignment of the judgment the creditor had taken against the bail, and to ■use it to indemnify himself out of the bail. How far that might be sustained now, it is not necessary to say. It shows, at all events, that the surety and the bail are not Co-sureties, as this Court held in Osborne v. Cunningham, and that the bail can have no recourse on an original surety, whether it be true vice versa, or not. Let another case, which is not uncommon, be stated : Principal debtor and surety are sued jointly, and the former, in order to get out of the sheriff’s hands, deposits with him an indemnity. Yet it is said, that the bail, with the principal’s money in his- pocket to pay that very, debt, may insist upon the creditor’s putting the surety in jail, in order to extort payment from him. That would be a hardship, indeed ; but it would be on the other side. Again: Suppose, as appeared to be the fact in the case of Trice v. Turrentine, that some of the defendants were insolvent, while the defendant for whom the bail undertook might be able to pay the debt. Wherefore compel the creditor to put an honest insolvent in prison, be at the expense of maintaining him there, and, on his swearing out, pay the sheriff poundage on the debt, which he could never get back? The law, we are very sure, could have no such intention. The object was to require the creditor to seek the debtor, whose bail he purposed to charge. It is like the common case of an execution against two, upon which, though the law requires the personalty to be all sold before land, the constant course has been, as well with levies of a justice's executions as with sales by sheriffs, to proceed against the land of one defendant, when his chattels were exhausted, although the other defendant might have a sufficiency of chattels, to satisfy the debt. Indeed, we have a statute, which requires that, when it appears upon the process, that one defendant is principal and the other surety. So, if there be a joint judgment against two, and one of them be honestly insolvent, so that the creditor cannot make the requisite affidavit to entitle him to a ca. sa. against him under the act of 1814, yet the other is fully able to pay the debt but his property is not tangible, or he is about to leave the State. Could any Court, upon affidavit of those facts and an undertaking by the creditor not to serve it on the insolvent, hesitate to issue a ca. sa. in conformity to the judgment against both? To refuse it would be to defeat justice and stifle the great purposes of the law under its forms. It is a very common thing for an execution to issue for one sum, with an indorsement to raise a less. The execution issues in one form for conformity to the judgment, but either a direction of the Clerk or the order of the plaintiff written on the process is an authority, how far short of its face the officer may go in executing it; and this may as well apply to persons as to things mentioned in it. Thus a capias ad respondendum issues against a man and woman, whereby the sheriff is commanded in terms to take their bodies, yet he in fact arrests but the man, and! as to the woman the writ operates but as a summons. Would the sheriff be bound to arrest the woman, because the writ was in that form? Or, if not, would he be at liberty not to arrest the man because he could not arrest the woman also ? Certainly the answer is in the negative in each case. The plaintiff could require the sheriff to arrest his male debtor, and direct him authoritatively, not to arrest or imprison the woman ; for the law, in exempting a female from imprisonment, did not alter the form of the process against her, but only changed its use-as to a female. Indeed, if there be a capias ad respondendum against two men, can any body doubt, that the plaintiff may, notwithstanding its terms, order the sheriff not to hold one of them to bail ? It has been done thousands of times, and is every day’s practice. That is nothing more nor less than an order not to arrest or take the body, but to summon ; and to that extent it is, not changing-the form, but the effect of the w'rit. So, in order to. charge bail, the course was to issue a ca. sa. according to the judgment, and, at the direction of the plaintiff, not to serve it on particular defendants but to return it non est inventus as to those, whose bail it was the object to fix. If that were not so, creditors would, always bring separate actions ; and, if the law requires the creditor to imprison insolvent defendants or sureties, before proceeding against the bail of a solvent defendant or of the principal debtor, no Court ought to order him to. consolidate. Besides, it would be so easy in other ways to evade the consequences of the rule, as to make it of little value to the bail. For, the creditor would have nothing to do but to issue his ca. sa, a few days before the return, and give notice of it to a defendant, whom he did not wish to arrest, so as to enable him to be out of the sheriff’s County for a short time, until non est inventus should be returned. That done, the sheriff would be fixed, and could never afterwards either take that defendant upon his own authority, or require the creditor to take out another ca. sa.; and thus this supposed privilege of the bail of one, to have process against all the defendants, would be rendered of no value. True it is, if one defendant be arrested and discharged by the creditor, that discharges the bail of another defendant. But why? Not because there is any connection between them, but because the other defendant, the bail’s principal, is discharged. Taking the body is satisfaction of the debt prima facie; and it is absolutely, if the creditor release the debtor from arrest. Bryan v. Simonton, 1 Hawks. 51. It is the same as payment; and, of course, the bail of all the defendants and all the defendants themselves, are discharged, there being no longer a debt, for which they can be liable. But, while the debt remains, the bail of one defendant has no right to require that another defendant, as such, shall stand before him, any more than he can have a recovery against him for any sum he may pay as the bail of the former. For, the contract of bail is restricted to his principal. If the creditor arrest him, that exonerates the bail at once; and nothing else can, except the payment of the debt, or its satisfaction, as just men» tioned. The law cannot undertake to settle, upon arbitrary rules, collateral equities that may exist between the parties, nor to judge of hardships that may arise to the one side or the other; but must satisfy itself with administering justice to each party according to the undertakings in their contracts. For these reasons the Court holds, that there was a sufficient ca. m* and return te charge the defendant as bail of Forkner ; and therefore that the plaintiff was entitled to judgment on the verdict, and that it must be now rendered.

It has never occurred to me, that there can be several executions on a joint judgment, or one execution on two judgments, except as specially provided for in the case ■of principal and bail by the act of 1777, C. 115. S. 19. I do not look back to the cases upon the subject, because I know it to be too thoroughly settled to be shaken, that the execution must conform to the judgment; and therefore I concur in thinking on that point with my brother Nash, that the precedents from time immemorial cannot be safely departed from. I own, indeed, that I think the precedents right in themselves, and that it would lead to great mischiefs to disregard them. The record ought to be kept consistent upon its face, which can be done only by requiring in the execution a conformity to the judgment ; and I have never heard a suggestion from any quarter that they need not coincide. Of course, my rule, as the safe one is, stare super antiquas vias ; for I then know where I am. But if I get into new tracks, I cannot tell where they may lead me ; and hence I deem it a duty to avoid them.

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Concurrence Opinion

Pearson, J.

I fully concur in the decision overruling the cases of Trice v. Turrentine, and Waugh v. Hampton, but I trace the source of the error higher up than the Chief Justice does in the opinion delivered by him.

It may be proper to state, that when this case was before me on the Circuit, feeling bound by the authority of those two cases, I decided in favor of the defendant, but advised an appeal, for the purpose of having them reviewed, because of a clear conviction, that they were wrong, and at points with Osborne v. Cunningham, For, if, as decided in that case, the bail, who has paid the debt, has no action against a co-defendant of his principal, hovv can it be, that he may resist a recover}-, unless the creditor has run a ca. sa. against such co-defendant, to the proper County, so as to force him to pay the defendant, or fly out of his County to avoid the process of law ?

The source of the error in those two cases, as I conceive, is not in the idea, that bail is but a “quasi security,” or that bail has the right to have all of the defendants before the Court, as, peradventure, one of them may have paid the debt. These are but braces, props, outposts', of the main position ; which is, that the judgment is a joint ene. Yeild this, and it follows, that the ca. sa. must be joint and must run against all the defendants ; and then; the conclusion is logical, that, as our statute requires the ca. sa. to be returned “non est inventus,” before the bail can be proceeded against, the plaintiff has no right to deprive them of this advantage by instructing the sheriff not to obey the writ, so far as one or more of the defendants are-concerned, and as to them to make an untrue return. This, it seems to me, is trifling with the forms of legal proceedings, and the officer, being commanded by the writ to take the bodies of two, ought not at the in. stance of the plaintiff falsely to return, that one is not to be found, when, in truth, he is in the County, for the purpose of throwing upon the bail a responsibility, which would not otherwise attach. It is this supposed privilege of having a ca. sa. truly returned, that induced Judge Daniel to say — bail are “quasi securities only'’ and have-a right to require that all the defendants should be brought into Court, to see if the debt has not been paid. These are legitimate corollaries and support his main position, which is based upon the foundation, that the judgment is joint. Assuming this to be true, he is warranted in the inference, that the execution must be against all of the joint defendants, by the cases cited, 1 Ray. 244, 1 Salk. SI9,2 Ray. 808 ; and it follows, that the return should be as broad as the execution, before the bail is fixed; according to our statute, “it is intended that the ca. sa. should be effectual.” Finley v. Smith 2 Dev. 248. I cannot find fault with the reasoning of that learned Judge, although all the inconsistences, pointed out by the Chief Justice, follow from his conclusions. I object to the position he takes for his starting point. To that I ascribe the error.

By the English law, a judgment against two or more is joint. If one dies, the burthen is upon the others. If all die but one, he alone is liable, and. if he be insolvent, the creditor loses his debt; and so is the law as to joint obligations. Our acts of 1789 and 1797 were intended to correct this inconvenience and injustice. They provide, that allobligationsshall be joint and sewerai, and that, ifan obligor dies, the creditor may have his action against the personal representative and surviving obligor. In Smith v. Fagan, 2 Dev. 298. it is held, that these statutes apply to judgments as well as to obligations, strictly so called, and that judgments, as far as defendants are concerned,, are joint and several. The nature of judgments being-thus changed and made different from judgments in England, the authorities cited by Judge Daniel are not in point. They decide, that an execution upon a joint judgment must issue as a joint writ against all of the defendants. But, here, the judgment is joint and several, and there can be no reason, why an execution may not issue against one of the defendants, treating it as several judgment with a recital, that it issued upon a judgment against two, as on record may appear. This will preserve “the conformity” as well, and be more direct and consistent with truth, than the mode of issuing against both, with instructions not to serve it on one, which is the same, under a deceptive form, as if it only issued against one.

Although this decision would overrule several cases, besides the two alluded to — among others,. Howzer v.. Dellinger, 1 Ire. 475 — yet it is, in fact, correcting but one error; the spring from which all the streams flow — that of considering judgments joint, as in England, and not as joint or several under the acts of 1789 and 1797 ; a distinction fully established by Smith v. Fagan. In that case the judgment was treated as several. The general doctrine was laid down and it was conclusively shown, that the English cases are not applicable. Unfortunately the distinction was lost sight of. The English cases were again cited and followed, which led to the results above indicated and make it now necessary to retrace our steps, at least as far as to overrule two cases, and, in my opinion, to overrule all, which flow from the same error.

Besides the case of Smith v. Fagan, the course of our legislature fully sustains the position, that judgments are several as well as joint. The act of 1823 provides, that no female shall be imprisoned for debt. It makes no provision for the case of two defendants, one of whom is a female, taking it for granted that a ca. sa. could issue against the male defendant alone, unless it was intended to screen him also. And the act of 1844 seems to be conclusive ; for it provides that no ca.sa. shall issue, unless the plaintiff makes oath, that the defendant conceals his property. No provision is made for the case of two defendants, thus taking it for granted, that a ca. sa. can be issued against one. It cannot be supposed, that it was the intention to let a fraudulent debtor go free, because he had an honest co-defendant, as to whom the oath could not be made. Nor in this case, will the shift of issuing against all, but with instructions to make a false return as to one, “serve the turn ;” for the oath is a condition precedent, and cannot be avoided by the plaintiff’s undertaking to give instructions. If the position, for which I am contending, was not correct before, it must be so since this statute. The legislature must be taken to authorise a ca.sa. to issue against one defendant, as to whom the oath can be made, although there be another, as to whom it cannot be made, and against whom, for that reason, a ca. sa. cannot issue ; and yet, if the judgment be joint and the reasoning correct, that “all the defendants are a “unit” and make but one defendant,” the ca. sa. must issue against all or none. The late statute, which provides that a want of conformity between the judgment and the. execution shall not vitiate, is no slight indication of the legislative will.

It is said, this w'ill make it necessary to overrule the cases of Hicks v. Gilliam, 4 Dev. 217, McIlwaine v. Jones, 4 Dev. & Bat. 154, and all of that class, in W'hich it is held, that one defendant cannot appeal, unless his co-defendants join. True ! they all flow from the same fountain. There is no better reason for overruling those of one class than of the other. All are based upon the same error, and, that being detected, it is wiser to take a “fresh start” than to embarrass the law by attempting to sustain some of the cases by making “distinctions” “too fine for use.” The process of reasoning in those cases is short and conclusive (admitting the premises) — a judgment is joint — therefore all of the defendants are a unit and make but one — and all must appeal or none — the judgment cannot be treated'as several, which would be the effect of allowing one to appeal without all, and, to close the argument by authority, it is added, it is well settled in England, that all the defendants must join in a writ of error, otherwise the Court.will quash. 2 Term. Rep. 736, 3 Bun. 1789, 1 Wilson 88. If, after error brought by one of several defendants in the names of all, the others re* fuse to join in the assignment of error, they w^ho refuse must be summoned and severed. Cro. Eliz. 891, Cro. James 94, 1 Arch. P. R. B. 232.

Thus it will be seen, that the conclusion, that all of the defendants must join in an appeal, is deduced from the English cases as to writs of error, which are founded upon the idea, that the judgment is joint.

In England the defendants, who refuse to join in assignment of error, may be summoned and severed. Here, there is no provision of the kind as to appeals, and a defendant is left without remedy, if his co defendant refuses to join; so that, notwithstanding the acts of 1789 and 1797, which were intended to do away with the hardships and absurdities growing out of the doctrine of joint obligations, joint judgments, and survivorships, defendants are really in a worse condition than they are in England, where there has been no such salutary and wise legislation.

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Dissenting Opinion

Nash, J.,

clissentiente. I do not concur with my brethren in the decision of this case. If, in their opinions filed, there had been a concurrence of views and no antagonistic reasoning, I should be more diffident of the one I have formed.

When the cases of Waugh v. Hampton, and Trice v. Turrentine, which are now overruled, were decided, I concurred with Judge Daniel in the opinions filed by him. I have just examined those opinions with all the care I could bestow upon them, and with no little solicitude. I have heard nothing to shake or alter the views there taken. Nearly, if not all, the reasoning urged in this case, and most of the authorities now cited, were then used and pressed into the argument. It was thought by a majority of the Court then, that, although arguments ah inconveniente were entitled to much weight in the construction and application of statutes, they had not, and could not have, the effect of altering the law and contradicting the will of the legislature, when acting within their constitutional limits : that, if an act be plain and its meaning perspicuous, the Courts have no authority to refuse to execute it, because it may produce inconvenience ; nor have they a right to apply it to cases, clearly not within the view of the legislature, unless the language used justify such application. Of this character is the familiar case of the statute, which punished with death the drawing of blood, within the verge of the Court. It was adjudged not to apply to a surgeon for bleeding a man, who had fallen down in a fit of apoplexy. Clearly not, without at the same time supposing those, who passed the statute, were crazy. The case now before the Court is, pari passu, with that of Waugh v. Hampton, and, without overruling it, judgment cannot be given for the plaintiff: if, indeed, there be, in substance, a difference, it is in favor of the defendant here. In this case the defendant actually arrested Walker, who appears to have been the principal debtor, contrary, it is true, to the directions of the plaintiff, (which, in my opinion, he had a clear right to do,) and permitted him to go at large upon the promise to appear at Court and give an appearance bond. Walker did appear and was again arrested by the defendant, and discharged by the direction of the plaintiff’s attorney. I do not,however, propose to further notice this point, though, in my opinion, it would have been a good defence to the action.

I consider this a question arising exclusively under the statute law of this State and to bo decided by it. In order to arrive at a just construction of the statute, we must see what the law was at the time of its passage, and ascertain what was the evil to be remedied. - By the common law, bail could not be subjected to a recovery, assuch, until & capias ad satisfaciendum had issued against the principal. Originally it was a wri-t for service — to be issued to the County, where the venue was laid, and if the defendant could not be found there, a testatum ca sa. might be issued to any other County — 1 Sellon’s Prac. 518. The bail by their contract undertake, that, if judgment be obtained in the action against the defendant, he shall satisfy it, or render himself a prisoner, or that they will do it for him. This is only on the supposition, that the plaintiff shall not bo able to take the defendant in execution, and thereby get satisfaction from him, either by his paying the debt or hv having his body in custody. As the bail were only answerable on the failure of their principal, when the plaintiff intended to resort to the bail, he was bound to proceed by a ca. sa against the principal, and the writ was to be returned by the sheriff with a “non est inventus2 Sellon 45. And, if the writ be against two or more, it must be executed on all. 5 Rep. 86,11 Rep. Godfrey’s case. In process of time, the ca. sa., so far as. the bail were concerned, ceased to be a writ for service —the principle having been established, that the bail was not bound to surrender the body of his principal, until it was demanded of him, it was considered unnecessary to arrest the principal, and notice to the bail, that he was looked to for satisfaction, was sufficient. To give this notice, the capias was required to lie four days in the sheriff’s office, and to be entered in his public book, as it was termed, whereby the bail, knowing where to look, could ascertain whether he was required to surrender the principal or not. 2 Tidd’s Prac. 1098-9. After lying in his office the four days next preceding the return day, the sheriff returned it “non est inventus” though the defendant may have been with him all the time, and without looking for him at all. The writ thus becomes a mere matter of form. The plaintiff did not intend or wish it to be executed. His object was to get satisfaction out of the bail, without making any effort to get it out of the principal: thereby losing sight of the essence of the contract of the latter — that if the plaintiff could not take the defendant in execution, the bail would be liable. 2 Sellon. 44. Such was the law in this State, when the act of 1777 was passed. What was the evil, under which bail labored at that time, as the practice then was? And what altcration was intended to be made by ,this act? North Carolina, at its enactment, was a very large State, extending from the Atlantic Ocean to the Mississippi River— the population thin and scattered — our Counties large — ■ and the districts, into which it was divided, and in which the Superior Courts were held, were very extensive ; and the latter had jurisdiction over the whole State. To adopt or continue the English rule, as to notice to bail, would have been a mockery — it was a rule or practice unsuited to the situation of the country and not at all calculated to give' notice to the bail. What was the remedy provided by the act of 3 777 ? It is, that a plaintiff shall not take out 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. scieri facias be first made known to the bail, which scieri facias shall not issue, until such notice shall have been so returned. It is obvious, that the legislature intended that the ca. sa> should no longer in practice be a writ of form, but that it should be of substance, and that it was intendedmainly, i-f not entirely, for the benefit of the bail. The plaintiff shall carry out in good faith the contract on his part with the bail; He shall first call upon his principal. In a vast majority of cases, a man’s bail will be those of his own County and vicinage. A ca. sa., if issued to that County, could scarcely fail to come to the knowledge of the bail, and would at once apprise him of the necessity of taking care of himself. The act requires the writ to issue to the proper County, and in Findlay v. Smith. 3 Dev. 247, the Court decide, “ that, prima facie, the proper County is the County where the original writ was executed.” After animadverting upon the use of the ca. sa., as being a matter of form, the opinion proceeds, ■ “we think our legislature meant something more in our ■ statute, and that it is required, as well for the benefit of the bail, as for the plaintiff, that it ought to be issued in the County, where it may be executed by the actual arrest of the defendant.” This is a judicial exposition of the act of 1777, so far as to the use of the ca. sa., to subject bail. Let us now see, what is its meaning where it says, that a scire facias shall not issue against the bail, until an execution be first returned, that the defendant is not to be found, &c. What is meant by the word defendant? At common law, all the defendants to a judgment, to use my brother Pearson’s expression, is a unit, and the ca. sa. must run against all — it must be as broad as the judgment. Hobart 59. Foster v. Jackson, 6 Dur. & East 525. Clark v. Clements and another. The word defendant means, then, all, who are defendants on the record, and who are liable to discharge it. I agree with his Hon- or Judge Pearson in his opinion on this part of the case, that, if, from the nature of the judgment, the ca. sa. is to be as broad as the judgment, then the conclusion of the Court in Waugh v. Hampton, and Trice v. Turrentine, was perfectly logical: that, as the act requires the capias to be returned non est inventus, before the bail can be proceeded against, the plaintiff has no right to deprive them of this advantage, by directing the sheriff not to obey the writ as far as one or more of the defendants is concerned. “This,” says his Honor, “appears to me to be trifling with the forms of legal proceedings.” Suppose the execution had been returned in this case and in those overruled, non est inventus as to a part of the defendants, without taking any notice of the rest, would that have been a sufficient return within the act ? I think, very clearly not. Let it be borne in mind, that the controversy arises mainly, if not entirely, upon the true construction of the 19th section of the act of 1777. It is not denied, but that the execution must be as broad as the judgment — that is, must issue against all the defendants, where there are more than one and all are alive. To say, that the plaintiff has a right to intercept the law in its course, by di« recting the sheriff not to execute it upon some, is, in my opinion, and I say it with all due. respect, paltering with the law. Why adhere to the form, when the substance is gone ? Why issue the execution at all 1 or, if issued, why not let it be issued against (he one, who is known to have left the County, and is not worth a stiver, in order to get at his bail ? The cases cited do not appear to me to conflict in any degree with the opinions in those overruled ; nor with this. They are all on cases, where the returns of the sheriff were full — here and in those overruled it was not. so. In Waugh v. Hampton, the return is, “non est inventus as to Falkner and Richardson,” and is silent as to the other defendants. In Trice v. Turrenline, it is, “King not found — I am directed by the plaintiff to execute this process on King only.” In the present case, it is, ‘'not executed on D. Walker. — Samuel Forkner not found.” Can it with any propriety be said, that such a return is within the act I — is the ca. sa. returned, “non est inventus V’ But it is said, that the sheriff, by not taking bail, has made himself special bail for all and stands as if he had given a separate bail bond for each. Be it so, he has a manifest interest in having each principal •debtor before the Court; for a payment by one is a payment by all, so far as the bail are concerned. If the sheriff is not bound to arrest all the defendants, it is easy to imagine cases, in which the law may be perverted to the injury of the bail, particularly when he is the sheriff. It is a well established principle, that there is no contribution among bail, nor has the bail, who discharges the liability of his principal, any claim upon any person but his principal, Let us suppose a case, then : A. and B. are sued jointly upon their joint obligation, in which they are both principals. A. is entirely insolvent, and B. solvent, The sheriff, knowing the entire ability of B. to discharge the debt and having confidence in his integrity, takes no bail, and thereby constitutes himself special bail for each — a joint judgment is had against them — B. discharges it, and not willing to pay the money, prevails on the plaintiff to let him have the use of his name to get it out of the bail o(A. All he has to do is to cause a ca. sa. to issue against himself and A., and a direction to the officer from the plaintiff not to execute it on B , but on A. alone. The latter has left the County and the writ is returned non est inventus as to him. The sheriff is unable to prove the payment by B., and is subjected to the payment of the judgment for the benefit of B., for whom he is actually bail. Whereas, if it be declared to be the duty of the officer to seek for, and execute the writ on, both the defendants, it never would, in the case supposed, issue at all. And in the same way may the bail of one defendant, who is insolvent, compel the bail of another principal, who is also insolvent, not to contribute but to pay the whole debt. Now I do not pretend, that any such -case ever did exist, or ever will, but it certainly may ; and, as, in my opinion, the act of 1777 was made for the benefit and protection of the bail, I prefer that exposition, which is in accordance with its directions and most surely answers its ends. Many other cases will readily suggest themselves. Some are pointed out in the opinions in the cases of Waugh v. Hampton, and Trice v. Turrentine. Nor can any case be imagined more strongly exhibiting the danger to bail by the construction, against which I am contending, than the one now before us. I strongly suspect, that Walker was the principal in the note or obligation, upon which the original action was brought. He is passed by and the bail of a man, who had left the County, is called on to pay the debt — there is nothing to show, that Walker could not pay it. It is no answer, that the defendant is the bail for both. The principle is the same under the act of 1777, as if Walker and Forkner had given separate and distinct bail.

But another objection has been taken to the correctness oí the decision in the cases overruled, and to the opinion of the Judge below in this. It is said, the error consisted in considering the judgments, upon which the ca. sa. issued as joint; whereas, they are in law joint and several, and the plaintiffs had a right to give to the sheriff the instructions they did. I do not agree with this position. It is based upon the 4th section of the act oí 1789, ch. 314, and the exposition of it made by the Court in the case of Smith v. Fagan, 2 Dev. 302. In my opinion, the position is sustained by neither. The legislature has left us in no 'doubt, as to its meaning. The preamble to the section, which, according to law books, is the key to unlock the mind of the law-giver, recites, that, by the common law, upon the death of a joint obligor, the debt cannot survive against his representative ; which frequently operates oppressively and injuriously to the surviving obligors. ^To remedy which : “Be it enacted, &c., in case of the death of one or move obligors, the joint debt or contract shall and may survive,” &c. Having provided for the evil recited in the preamble, they goon to prescribe, “that, after the ratification of the Act, in all cases of joint obligations, or assumptions of co-partners, or others, suits may be brought and prosecuted on the same, as if such obligations or assumptions were joint and several.” Nothing is said as to the nature of the judgment or of altering its effect. By the common law, if two or more are jointly and severally bound in a contract, and they are sued jointly, and judgment obtained against all, the execution must be against all; because, though they are several persons, yet they make but one debtor, when sued jointly. Hob. 59. 6 Term Rep. 525. Clark v. Clements et al. This is not altered by the statute, so far as the execution is concerned. Numerous decisions of our Courts affirm the principle, that, when the judgment is against several, the execution must go against all — in other words, be as broad as the judgment. The opinions in this case affirm it. I do not consider the case of Smith v. Fagan, as sustaining the position. A judgment had been obtained against two defendants, one of whom had subsequently-died, and the scievi facias was to subject the estate of the deceased defendant to the payment of the judgment. The Court decided, that under the first enactment of the 4th Section of the act of 1789, the debt survived against his representative or estate. It is there admitted, that the case was not within the act, except by intendment, as being within the mischief proposed to be corrected. It does not, in my estimation, touch the question raised here. It does not, as I understand it, decide, that all judgments, even upon contracts, obtained against several persons are joint and several. The Court confine their attention to a case, coming within the mischief intended to be provided for by the act — that is, where one of several defendants to a judgment dies. After giving several instances, where the death of one of several joint obligors shall not throw the burthen entirely upon his co-obligor, but his representative may be brought in, it is observed, “we can see no possible reason, why, in the. case of a joint judgment it should not be so likewise” — that is, where the judgment is joint against several and one dies, no reason exists, why the debt or assumption should not survive against his estate. In this case and in those overruled, the judgments are joint — that is, are against all the defendants and they were all alive at the time the ca. sa. issued, and are so still, as far as we are informed. The Court could not have intended to declare, that all judgments were several as well as joint. If they had, it would have been an obiter dictum, not called for in the decision of the case, and no further binding than as sustained by reason and the high authority, from which it emanated. But, that they did not so intend is evident from the case of the Bank of Newberne v. Stanly & Jones, 2 Dev. 476, decided by the same Judges at the succeeding Term of the Court. A scieri facias had issued against all the heirs of one Harvey to subject the real estate to the payment of a judgment, obtained against the administrator. One oí the defendants was an infant. Judgment was obtained against all, and a joint sci.fa. issued against ai!; and the Court say it was properly so issued, but that it could not, under the act of 1789, ch. 3J1, be levied on the land of the infant, until twelve months after the rendition of the judgment.

If they had intended in Fagan's case to rule, that all judgments were joint and several, the question could not have been raised in the case referred to. But the contrary opinion has been declared by this Court in repeated instances, particularly in that series of cases, wherein the Court have declared, that one defendant in a joint judgment could not appeal. Hicks v. Gilliam, 4 Dev. 218, is the first and leading case on the subject. It was decided in 1833, a majority of the Court consisting of the same Judges, who made the decision in Fagan's case. This was followed by the case of Dunn v. Jones, 4 Dev, & Bat. 154, decided in 1838. In Stiner v. Cauthorn, 4 Dev. & Bat 501, decided in 1839, the doctrine is recognised. So in Stephens v. Batchelor 1 Ire. Rep. 60, and in Wilkinson v. Gilchrist, 4 Ire, 228, in 1844, it was ruled, that all the parties to a judgment, either plaintiffs or defendants, must join in an appeal or it will be dismissed. The case of Donnel v. Shields, 8 Ire. 272, decided in 1848, is an exceedingly strong one. It was an action of trover for the conversion of slaves — the defendants pleaded severally, and the jury found them “severally guilty,” but it assessed the damage jointly against the whole. The Court say the judgment was a joint one, and that one defendant could not appeal. At the same term the case of Smith v. Cunningham, page 460, was decided upon the same principle. Here, then, are seven cases following quick upon the heels of Fagan’s case, and, at no long intervals, each other, and all directly upon the principle, that judgments are joint, where the damages are joint against all the defendants, and necessarily so, because the judgment must pursue the verdict, where it is given upon it. Hey don’s case, 11 Cooke 5. Sawfield v. Bancroft, Str. Rep. 910. It is impossible to suppose the individuals, making these decisions, were ignorant of Fagan’s case, or of the principle intended to be decided by it; particular!}' when we recollect, that the leading member of the Court, which made them, was a member of the Court when Fagan’s case was decided, and delivered the opinion To sustain the position, that all judgments, since the act of 1839, ch. -, are joint and several, is, at a dash of the pen, to overturn all these cases. I cannot consent to do so. I believe they were correctly decided; and that, therefore, as far as repeated decisions of this Court can settle any legal question, it is settled law here, that, when damages are assessed by a jury jointly against several defendants, the judgment must be joint, and cannot be several ; and that, the capias ad satisfaciendum must run against all the defendants ; and that, under the act of 1777, it must be returned non: cst inventus against ail, if alive, before the plaintiffcan proceed against the bail; and that it is not in the power of the plaintiff to intercept the course of the law, by directing the shertiff not to execute it on some of them ; and that, therefore, neither in the cases over-ruled, nor in this, was there such a return of the ca. sa, as is contemplated by the act of 1777.

Other questions arose on the argument in the case of Trice v. Turrentine, which I have not noticed ; because I agreed with my Brethren, that there must be a repleader ; and if the case should come before us again, an opportunity will then be afforded me to do so.

My opinion is, that the judgment below in this case ought to be affirmed.

Per Curiam.

Judgment reversed and a venire de novo.

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Lead Opinion

NASH, J., dissentiente. The decision of this Court in Trice v. Turrentine,27 N.C. 236, and Waugh v. Hampton, ib., 241, was the authority which governed the presiding judge in this case, and the present appeal was designed to bring that decision under review. It was given with hesitation by a divided Court. After taking time for deliberation and maturely reflecting on the reasons given in those cases, the Court, believing the opinion to be erroneous, is constrained, though reluctantly, to hold it so.

(581) The opinion delivered laid down a position entirely new to the profession and in opposition to a course which had been always practiced in this State. There had been many judgments against bail of one defendant on non est inventus returned as to him, because he could not be found, and returned, as of course, in respect to the others, by the direction of the plaintiff not to take or to look for them; and there can be no little doubt but that the same would have been done in those cases and in the present if the sheriffs had not happened to be the bail. It is manifest upon the face of the opinion, as delivered by our late learned brother Daniel, that the judgment rests upon this position: That when a judgment is taken against two or more, as between all of them and the bail of one they are all principal debtors, and the bail stands as surety for all the defendants. He does not, indeed, lay down the proposition quite so explicitly as that — as he would, doubtless, have done if he had seen his way as clearly as he usually did. But that is the necessary effect of what he does say. His words are: "that the Legislature considered all the defendants as principal debtors, and the bail of all or any of the defendants as quasi sureties only; and before these sureties [bail] should be looked to by the plaintiff for the debt, he should show by a ca. sa. returned nonest inventus as to all the principals, that he had been unable to get his debt" — that is, from either of them. That position is, we think, essentially wrong; and as it lies at the foundation of the opinion, the whole must fall together. The error consists in regarding the bail of one defendant as the surety of another, or that any person is the principal of the bail except him for whom he became bound by the bail bond. The sheriff, indeed, does not give a bond, but becomes bound by law as a special bail if he fail to return a sufficient bond given by other bail. But it is admitted in the opinion, that can make no difference, and that he is to be regarded as if he had given a separate bond as the bail of Forkner; for bail is always taken for each (582) defendant separately, and the sheriff cannot prejudice the plaintiff by becoming bail under the statute instead of taking a bond from other sureties. Now, if several bonds be given by different bail for the different defendants respectively, we must deny positively that the bail in one of those bonds can be deemed the bail of another defendant, or his surety, or quasi surety, to any purpose whatever. The term "quasi," as here used, has no meaning or legal effect, but is calculated only to mislead. One must be surety for another or not, for there is no middle state or relation. Then, it seems clear that the bail and surety for one is not the surety for the other, more than he is his bail. He becomes bound solely by becoming bail, and he is bound as surety as far as he is bound as bail, and no further. It follows that his right of indemnity goes to the same extent, and no further. Judge Daniel must have felt that to be so; and that induced him to use the qualifying phrase, "quasi sureties," which, however, served not to help on his argument, but only to perplex the question the more. When one man is surety for another, he has a right to be made whole by the principal for any loss sustained thereby, and to contribution from any other bound as surety for the same debt. That is inherent in the relations of principal, surety, and cosurety, and every court recognizes it which takes cognizance of questions between persons in those relations. Yet it is distinctly admitted in the opinion that there is no such right to indemnity or contribution from one defendant or his bail to the bail of another. Indeed, it was expressly held so in Osborne v. Cunningham, 20 N.C. 559, and in Ferrall v. Brickell, 27 N.C. 67. Judge Nash, in delivering the opinion of the Court, said that "the sheriff, as bail" — that is, for Lowe, who was not taken — "was not in any manner concerned in the effort to be made by Hawkins" (583) — who was the other debtor — "to procure his discharge under the insolvent law." That must be seen to be so, when one reflects that there is no mode by which a person can become surety for another but by contract; and that the contract of bail is in a prescribed form, which in terms is restricted to his one principal. That consideration by itself ought, it would seem, to be conclusive on the point. But its force was avoided by the observation that, although the bail of one defendant is not entitled to indemnity or contribution from another, yet he has an interest that all the defendants shall be brought in, because, peradventure, one of them, for whom the bail is not bound, might show that the debt has been paid, or might then be induced to pay it, and so the bail might get off without either paying any money or rendering his principal. True, he might. But the question recurs, ought he to get rid of his engagement in that way? Has he a right so to do? Now, it is obvious that one of the original defendants has precisely the same interest that the creditor should bring in his codefendants, which, when existing in the bail of one, is supposed to create the obligation on the creditor to take all the debtors, if he can. For one defendant may, with as much truth, say to the creditor, Your judgment is against two, and therefore each ought to pay his half, and you ought not to imprison me for the whole debt, because, if you would take the other man also, he might show that he has paid his half, or might be induced by the imprisonment to pay it now. As far as the interest of one defendant and the bail of that defendant goes or can operate upon the question, it is the same in each. But has either of them the right to demand of the creditor thus to imprison all the debtors? Plainly not, in the one case more than in the other; for the right depends upon the interest of the several parties, and that has been shown to be the same in each. But, without pressing that point further, there are other observations to be made upon the proposition. The first is that it is a (584) total departure from the principle which the opinion sets out as the foundation of this right in the bail, namely, that of suretyship. This view leaves that notion out of sight, and, consequently, the idea of indemnity is abandoned. A proposition, distinct from the other and entirely new, is brought forward: that, by virtue of the requirement in the statute of aca. sa. returned non est inventus before the sci. fa. against bail, there is an obligation on the creditor to take all the original defendants, if he can, before he can have recourse to the bail of one who had fled the country. Now, that seems to be a complete begging of the question. Whence arises that obligation — how is it to be inferred? The statute, indeed, requires theca. sa., and it must be as broad as the judgment, and therefore run against all the defendants. Still, as the bail is bound but for one, where is his right to require the creditor to take anybody but the one for whom he is bound? If his principal be taken, the bail is instantly discharged. By what? Not by his principal's paying the debt, but by the taking merely. For that was the contract of the bail — that he would render his principal, if he did not render himself. But the rendering or taking of another defendant leaves the obligation of the bail precisely as it was before. He is still bound to render his principal or pay the money; and the creditor, while having one defendant in jail, may levy the money from the bail of another. Suppose he should; how, then, do those parties stand to each other? Why, the imprisoned defendant is immediately discharged, because the debt is paid; and yet the bail, whose money paid this man's debt and turned him out of prison, and who is said to stand as quasi surety for him, cannot get one copper from him who is thus discharged from debt and imprisonment. For that was the adjudication in the two cases before cited; and in each it was clearly right, as we think, inasmuch as the contract of the bail is for and with his own principal, (585) and him only. The case of Osborne v. Cunningham, supra, is particularly strong, because the defendant, as we collect from the statement, may have been not only a joint debtor in form, but in fact. But if it were otherwise, and he was the surety of Patton, it is much the same; for, in that case, the original surety and the bail for the principal debt would have stood in the relation of cosureties; and to meet that view the defendant offered to show that he had paid one-half of the debt before the suit, but the court would not hear the evidence, because there was no privity between them, and therefore the bail could not recover under any circumstances. But there is another observation which seems very material. If the bail of one has such an interest in the creditor's pursuing all the defendants as to amount to a right in the bail to require him to do so — because, as it is said, it may be that he would not have bound himself for that one if the others had not been parties — then, plainly, the creditor ought to be bound to prosecute all the original defendants to judgment. For there is no substantial difference, as far as the bail's liability and interest is involved, between letting off the solvent defendant before judgment and declining to imprison him afterwards. Yet it was held inBradhurst v. Pearson, ante, 55, that the sheriff was the bail of each separately, and that the plaintiff's entering a nol. pros. as to one defendant did not discharge the bail of the other. Those cases show that the law cannot look out of the contract of bail for his liability, or undertake in proceedings against bail to redress collateral inconveniences on the one side or the other. Some of these inconveniences to the bail are adduced, in the opinion under consideration, as reasons for the extraordinary privilege there extended to him. It is said, for example, that a solvent defendant may be here, and yet the bail of the other made liable, although his principal may have become insolvent and fled — which is adduced as a hardship. But, (586) necessarily, it is none at all, nor generally would it be one. In the first place, it is to be replied to the bail, that he bound himself to render his principal, and the very case which his obligation was intended to cover has happened, namely, the flight of his principal beyond the process of the court. In the next place, he is not bound to pay the debt if he will render his principal; and to that purpose his solvency or insolvency is not material; and, indeed, he cannot know that his principal would not be able to procure the means of payment, if surrendered. In the third place, he cannot know that his principal is not the primary debtor, and the very man who ought to stand not only before him, but before the other defendants in the judgment — he being the principal debtor and the others his sureties. Suppose this last to be the case: then the creditor, so far from pressing payment out of the original surety by ca. sa., it seems, is under an equitable obligation of benevolence to him to get payment from the bail of the principal rather than from the surety. For, in Parsons v. Briddock, 2 Vern., 608, it was decreed, where the principal was sued and gave bail, and afterwards an original surety paid the debt, that such surety was entitled to an assignment of the judgment the creditor had taken against the bail, and to use it to indemnify himself out of the bail. How far that might be sustained now it is not necessary to say. It shows, at all events, that the surety and the bail are not cosureties, as this Court held in Osborne v.Cunningham, 20 N.C. 559, and that the bail can have no recourse on an original surety, whether it be true vice versa or not. Let another case, which is not uncommon, be stated: Principal debtor and surety are sued jointly, and the former, in order to get out of the sheriff's hands, deposits with him an indemnity. Yet it is said that the bail, with the principal's money in his pocket to pay that very debt, may insist upon the creditor's putting the surety in jail in order to extort payment from (587) him. That would be a hardship, indeed; but it would be on the other side. Again: Suppose, as appeared to be the fact in Trice v. Turrentine, 27 N.C. 236, that some of the defendants were insolvent, while the defendant for whom the bail undertook might be able to pay the debt. Wherefore compel the creditor to put an honest insolvent in prison, be at the expense of maintaining him there, and, on his swearing out, pay the sheriff poundage on the debt, which he could never get back? The law, we are very sure, could have no such intention.

The object was to require the creditor to seek the debtor whose bail he purposed to charge. It is like the common case of an execution against two, upon which, though the law requires the personalty to be all sold before land, the constant course has been, as well with levies of a justice's execution as with sales by sheriffs, to proceed against the land of one defendant, when his chattels were exhausted, although the other defendant might have a sufficiency of chattels to satisfy the debt. Indeed, we have a statute which requires that, when it appears upon the process that one defendant is principal and the other surety. So, if there be a joint judgment against two, and one of them be honestly insolvent, so that the creditor cannot make the requisite affidavit to entitle him to a ca. sa. against him under the act of 1844, yet the other is fully able to pay the debt, but his property is not tangible, or he is about to leave the State. Could any court, upon affidavit of those facts and an undertaking by the creditor not to serve it on the insolvent, hesitate to issue a ca. sa. in conformity to the judgment against both? To refuse it would be to defeat justice and stifle the great purposes of the law under its forms. It is a very common thing for an execution to issue for one sum, with an indorsement to raise a less. The execution issues in one form for conformity to the judgment, but either a direction of the clerk or the order of the plaintiff written on the process is an authority (588) how far short of its face the officer may go in executing it; and this may as well apply to persons as to things mentioned in it. Thus a capias ad respondendum issues against a man and woman, whereby the sheriff is commanded in terms to take their bodies, yet he in fact arrests but the man, and as to the woman the writ operates but as a summons. Would the sheriff be bound to arrest the woman because the writ was in that form? Or, if not, would he be at liberty not to arrest the man because he could not arrest the woman also? Certainly, the answer is in the negative in each case. The plaintiff could require the sheriff to arrest his male debtor, and direct him authoritatively not to arrest or imprison the woman; for the law, in exempting a female from imprisonment, did not alter the form of the process against her, but only changed its use as to a female. Indeed, if there be a capias ad respondendum against two men, can anybody doubt that the plaintiff may, notwithstanding its terms, order the sheriff not to hold one of them to bail? It has been done thousands of times, and is every day's practice. That is nothing more nor less than an order not to arrest or take the body, but to summon; and to that extent it is not changing the form, but the effect of the writ. So, in order to charge bail, the course was to issue a ca. sa. according to the judgment, and, at the direction of the plaintiff, not to serve it on particular defendants, but to return it non estinventus as to those whose bail it was the object to fix. If that were not so, creditors would always bring separate actions; and if the law requires the creditor to imprison insolvent defendants or sureties, before proceeding against the bail of a solvent defendant or of the principal debtor, no court ought to order him to consolidate. Besides, it would be so easy in other ways to evade the consequences of the rule as to make it of little (589) value to the bail. For the creditor would have nothing to do but to issue his ca. sa. a few days before the return and give notice of it to a defendant whom he did not wish to arrest, so as to enable him to be out of the sheriff's county for a short time, until non est inventus should be returned. That done, the sheriff would be fixed, and could never afterwards either take that defendant upon his own authority or require the creditor to take out another ca. sa.; and thus this supposed privilege of the bail of one, to have process against all the defendants, would be rendered of no value. True it is, if one defendant be arrested and discharged by the creditor, that discharges the bail of another defendant. But why? Not because there is any connection between them, but because the other defendant, the bail's principal, is discharged. Taking the body is satisfaction of the debt primafacie; and it is absolutely, if the creditor release the debtor from arrest. Bryan v. Simonton, 8 N.C. 51. It is the same as payment; and, of course, the bail of all the defendants and all the defendants themselves are discharged, there being no longer a debt for which they can be liable. But, while the debt remains, the bail of one defendant has no right to require that another defendant, as such, shall stand before him, any more than he can have a recovery against him for any sum he may pay as the bail of the former. For the contract of bail is restricted to his principal. If the creditor arrest him, that exonerates the bail at once; and nothing else can, except the payment of the debt, or its satisfaction, as just mentioned. The law cannot undertake to settle, upon arbitrary rules, collateral equities that may exist between the parties, nor to judge of hardships that may arise to the one side or the other; but must satisfy itself with administering justice to each party according to the undertakings in their contracts. For these reasons the Court holds that there was a sufficient ca. sa. and return to charge the defendant as bail of Forkner; and therefore that the plaintiff was entitled to judgment (590) on the verdict, and that it must be now rendered.

It has never occurred to me that there can be several executions on a joint judgment, or one execution on two judgments, except as specially provided for in the case of principal and bail by the act of 1777, ch. 115, sec. 19. I do not look back to the cases upon the subject, because I know it to be too thoroughly settled to be shaken, that the execution must conform to the judgment; and therefore I concur in thinking on that point with by brother Nash, that the precedents from time immemorial cannot be safely departed from. I own, indeed, that I think the precedents right in themselves, and that it would lead to great mischiefs to disregard them. The record ought to be kept consistent upon its face, which can be done only by requiring in the execution a conformity to the judgment; and I have never heard a suggestion from any quarter that they need not coincide. Of course, my rule, as the safe one, is, stare super antiquas vias; for I then know where I am. But if I get into new tracks, I cannot tell where they will lead me; and hence I deem it a duty to avoid them.