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Griffin vs. Moore.

defence, if sustained, would have been final as to three of the plaintiffs, and the rest would have their judgment, and thus an end would have been put to the whole controversy. Tindal, C. J. in delivering the opinion of the court in the above case, says: “It

appears to me to be the ordinary case; two persons interested in a chattel bring separate actions for a tort; the damages may be severed; they are not so tied together, even by the joint demand, that they may not sever when they come into court.”

Upon the authority, then, of this case, as well as upon principle, I should have dissented from my brethren of the bench below as to the admissibility of Miller's defence at law. Still, he is bound by the judgment against him, even if it be erroneous; and the fact that it is so, furnishes no justifiable pretext for the interference of chancery; the law having been declared otherwise on the two previous trials, should have admonished him to beware and prepare for the third, in the manner indicated by the Court, viz: by timely calling upon equity to aid him in getting in his defence at law.

The judgment below must be reversed.

No. 49.—Martha Griffin, plaintiff in error vs. Elisha MOORE,

defendant in error.

[1.) Where bail surrenders his principal during the session of the court, it is his duty

to have an econeretur entered on the minutes of the court, which will be the only

legal evidence of his discharge. [2.] According to the provisions of the Judiciary Act of 1799, the liability of bail in this

State is not absolutely fixed until the plaintiff in the action obtains final judgment for his demand, and a capias ad satisfaciendum issues thereon, and the principal cannot be found, scire facias issues against the bail, which must be served twenty days before the court, and judgment thereon. Held that the bail has the right to surrender his principal in discharge of his liability, at any time before final judgment on the scire facias; and that the death of the party between the return of non est indentus, and final judgment on the scire facias, might be shown in discharge of the bail.

From Taliaferro Superior Court. Scire facias against bail. Tried before Judge Sayre. March Term, 1847.

Griffin os. Moore.

The plaintiff in error became the bail of one Turley. Final judgment was obtained for the demand sued on, and capias ad satisfaciendum issued thereon, and non est inventus returned. Scire facias was then issued against the bail, and upon the trial thereof the plaintiff in error who was the bail, offered to prove by parol evidence, that she had surrendered her principal during the session of a previous term of the court. This testimony being objected to, was overruled by the Court below, and the plaintiff in error excepted.

The plaintiff in error then offered to prove that her principal, subsequent to the said return of non est inrentus, had departed this life, and the same being objected to was overruled by the Court below on the ground, that the debt had become fixed upon

the bail by the said return of non est inventus, so as not to be discharged by the death of the principal at any time thereafter. To which the plaintiff in error excepted. Judgment was rendered against the bail in the Court below, and the writ of error was sued out in this case to reverse that judgment.

STEPHENS & Bird for the plaintiff in error, made the following points :

First. Parol evidence is admissible to establish any fact except where written or record evidence is expressly required by law. 2 U. S. Dig. 294, title Parol Ev. and authorities there cited; Commts. vs. Allen, 2 Rep. Con. Ct. 88; Kirkpatrick vs. Vanderveer, 2 Rep. Con. Ct. 341 ; 2 Greenlf. Ev. sec. 517.

Second. At common law, bail was discharged ex debito justitia by the death of the principal before the return of non est intentus upon the càpias ad satisfaciendum against him. 1 Bac. Abr. 342, and authorities there cited; W. Jones, 28.

Third. After that return, the bail surrendering in discharge only ex gratia, and not ex debito justitia, would not be heard in any matter of excuse for failing to surrender, but could be discharged only by an actual surrender or its equivalent. 1 Bac. Abr. 342, and authorities there cited; 4 John, R. 407; 5 Bin. 332; 2 Am. Common Law, 91; 12 Wheat. R. 604; 3 McCord R. 49; 14 East R. 599; 18 John. R. 335; 1 John. Cases, 28; 1 Cowen R. 599.

Fourth. Our statute extends the time of a surrender ex debito justitiæ down to the rendition of final judgment on the scire facias against the bail, and extending the time, carries along also all the excuses which are good for a failure to surrender before the re

Griffin os. Moore.

turn of non est. Prince, 423; 9 Peters R. 329; Broom Legal Maxims, 111, and cases there cited.

Thomas, for the defendant in error.

The surrender of the principal in term time can only be made to the court. Prince.

No act of the court can be proved otherwise than by the records of the court. The reception of the principal by the court is an act of the court

As to liability of bail.

Bail to the action are discharged by performing the condition of the recognisance, or by some matter operating in excuse of performance. 1 Tidd Practice, 281.

First. The bail is not discharged without exoneretur being entered on the recognisance. 1 Tidd, 288.

Second. Without the exoneretur is entered the bail is liable, though the principal is in jail under the writ. Ib.

The act of God, the act of law, or the act of the party, may excuse the bail from performing the condition of the recognisance. Ib. 289, 293, 294.

The act of law excuses by the principal receiving a certificate of bankruptcy, or being transported from the realm, even after condition broken. Ib.

The act of God does not excuse after condition broken, from the death of the party.

The condition is broken, or bail fixed, at least for most purposes, by a return of non est inventus, viz. to authorize the bringing sci. fa. Under our statute, the bail is as clearly fixed here as in England by such return.

If any distinction exists, it only exists tò authorize the plea as matter of right, which in England was matter of favour. But it only amounts to allowing such pleas and such only, as were matters of favour, and the death of the party was never in England an excuse after return of non est inventus.

By the Court-WARNER, J. delivering the opinion.

Two grounds of error are assigned in this case to the decision of the Circuit Court.

First. That the Court erred in deciding that it was not compe

Grittin os. Moore.

tent for the security on the bail bond to prove a surrender of his principal during term time, by parol testimony.

Second. That the Court below erred in withholding from the jury all evidence of the death of Turley, the principal in the bail bond, after the return of non est inrentus on the capias ad satisfariendum, holding that the debt then became fixed upon the.bail, so as not to be discharged by the death of the principal at any time thereafter.

(1.) With regard to the first ground of error assigned, we are all of the opinion that the parol evidence, as to what was done by the Court during its session in relation to the surrender of the principal by his bail, was properly rejected. The proceedings of the Court, while in session, can only be known by its record. It is the duty of the security on the bail bond, when he surrenders his principal during term time, to call the attention of the court to the 'fact, and have an eroneretur entered on the minutes of the court, so that the court may make such further order in the premises as the law requires. Without such eroneretur being entered when the surrender is made during the session of the court, the security for the principal is not discharged. Tidd Practice, 241.

(2.) In relation to the second ground of error taken, we are of the opinion that the Court below erred in its judgment in ruling out the testimony of the death of the principal before final judgment on the scire facias against the bail, and in holding that the liability of the bail became fired for the payment of the debt, from the date of the return of the sheriff on the capias ad satisfaciendum of non est inrentus. By the common law, it would seem, the bail became fixed for the payment of the debt on the return of non est inventus on the capias; the courts, however, by rule, granted further indulgence to the bail to surrender his principal, but this indulgence was considered as matter of farour only, and not a matter of strict right; and if the principal died intermediate the return of non est inrentus on the ca. sa. and the time limited by the rule of court for his surrender, the bail was not discharged.

In Mannin vs. Partridge this rule however to some extent would seem to have been relaxed. 14 East R. 599. In that case there was a return of non est inventus made on the capias, after which, and before the expiration of the time limited by the rule of the court for the surrender of the principal by his bail, the principal was discharged from the debt under a commission of bankruptcy, and obtained his certificate. The question made in that case was,

Griffin 08. Moore.

whether the bail became fired for the payment of the debt from the time of the return on the capias, of non est inrentus, so as to prevent the bail from being relieved? and the court held that it did not. Lord Ellenborough, in delivering the opinion of the court, is reported to have said. “Bail are, to some purposes,

said to be fixed by the return of non est inventus upon the capias ad satisfaciendum, but if they have, by the indulgence of the court, time to render the principal until the appearance day of the last scire facias against them, and which they have the capacity of using, they cannot be considered as completely and definitely fixed till that period.”

In Beers et al. vs. Haughton, 9 Peters R. 329, the same principle was asserted. If the principal, being discharged by operation of law from the payment of the debt subsequent to the return of non est inventus on the capias and before the time allowed by the rule of the court for his surrender, will discharge the bail, why is it that the act of God, intervening between the return on the capias and the time limited for the bail to surrender his principal, will not also discharge him?

In the one case the operation of the law prevents the surrender, in the other, the act of God prevents it, both events happening, after the return on the capias of non est inventus by which it is said the bail, by the rule of the common law, become fixed for the absolute payment of the money. Whatever may be considered the common law-rule on this subject, we think our own statute must control it, which in our judgment gives to the bail, not as a matter of farour only but as a matter of right, the privilege of surrendering his principal at any time before entering up final judgment on the scire facias. By the 15th section of the Judiciary Act of 1799, Prince, 423, it is declared, “All bail taken according to the directions of this act, shall be deemed, held, and taken as special bail, and as such be liable to the recovery of the plaintiff'; but the plaintiff, after final judgment, shall not take out execution against such bail, until a capias ad satisfaciendum shall first be issued thereon, and the principal cannot be found, and shall also issue a scire facias returnable to the said court, which shall be served on the bail at least twenty days before the return thereof; and after the return of such capias ad satisfaciendum against the principal, and scire facias against the bail, and judgment thereon, execution may issue against the principal and bail, or either of them, or either of their estates, unless the bail shall surrender the principal at or before entering up final judgment on the

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