Mellen C. J;
delivered the opinion of the Court as follows :
It seems to have been conceded in argument, that if the facts in this case, would furnish a good defence in a suit against the bail, they will be a good bar to this action; because, if the bail were in law completely discharged, before the bail bond was even demanded of Waters, then,- as it was a dead letter, it was of no value and could be of no use to the plaintiff; and therefore its non-delivery could not be any possible injury to' him. In the case of Champion v. Noyes, 2 Mass. 481. — a leading case on the subject of bail — Parsons, C. J. says, — “After the “ writ is returned, and before final judgment, the bail may surrender the principal to.the court in which the suit is pending, “ and be discharged.” By the provisions of our statute respecting bail 1821, ch. 62. the bail at any time before judgment is em> *384tered against them on the scire facias may surrender the principal in Court, paying the costs of the scire facias. In the casé above cited the Chief Justice further states, — “ If after issuing “ the execution, arid before the return, the bail surrender the “ principal to the sheriff holding the executionj the bond is saved “ at law, and the sheriff is obliged to commit him in execution.” In Rice v. Carnes, 8 Mass. 490. the Court in delivering their opinion say, “ If execution is sued out, the bail may surrender the “principal to the officer having charge of it; or he may wait the return of the scire facias, and then make the surrender in “ Court.” In both the foregoing cases, the Court speak of the three several modes of discharge as equally effectual. The case of Walker v. Haskell, 11 Mass. 181. has been cited and relied on by the plaintiff’s counsel as opposing the principles of Champion v. Noyes and Rice v. Carnes. We have not been able to draw the samé conclusions from it which the counsel has drawn. The only point settled is, that the creditor’s assurance to the officer holding his execution against his debtor, that he would take no advantage of him,- if he would do the best he could, was a good defence to' an action brought by the credit- or against the officer for not arresting the debtor. There certainly is some obscurity in the case as it stands ; for though it appears that the bail had surrendered the principal to Walker the officer holding the execution against Glidden, yet the Chief Justice, in reasoning upon the facts, seems to proceed on the idea that the bail continued liable. It may perhaps be explained by the circumstance, that though the fact of the surrender to Walker was contained, among a vast many others, in the bill of except tions, vet the exceptions were taken to certain directions of the Judge to the jury, not one of which had any relation to the surrender or the legal effect of it; and, of course that subject was noL judicially brought before the Court. The only question to which their attention seems to have been directed was, whether the plaintiff could charge the officer with official neglect, and recover damages against him, after the liberal discretion he had allowed him and the assurance he had given him ; and these facts would have been equally important to Walker in such an action, whether the bail had been discharged or not. At any ■ rate, we do not consider this last case as weakening the author-*385sty of the two former; and accordingly are satisfied that thd facts stated in the pleas in bar, if correctly pleaded, furnish a good defence. As to the causes of demurrer, we would observe, that the view we have taken of this case, shews the first cause lobe of iso importance. The second seems to be of the same character, if truly assigned ; of which there is much cpieslion, because the second plea states that the bail of the original debtor delivered up and surrendered him to the said Watson ; which averment certainly contains an affirmation of his being in the custody of the bail at the time of so delivering him up ; and as we are of opinion that a surrender of the principal to the shcr* iff holding the execution is a discharge of the bail, he need not be ready at ail times after, within the year to surrender him-. The third cause is not well assigned. The first and second pleas corf ess the demand of the bail bond as alleged (and this and the non-delivery of it constituted the gist of the plaintiff’s ac* lion) and then avoids the demand made upon him by disclosing* , certain new facts anterior to such demand and refusal. The special demurrer is also fatally defective in not .pointing out minutely wherein the pleas are double and argumentative, if they aro so. On the whole we arc satisfied that the action cannot bd maintained.
Vices in bar adjudged sufficients