John D. Warren vs. Eliab Gilmore & another, 11 Cush. 15

Metcalf, J. The St. of 1817, c. 146, which first authorized bail to discharge themselves by committing their principal to jail, and giving written notice to the plaintiff, or his attorney, of the time and place of the commitment, contained a provision that if such commitment should be made after a writ of scire facias had issued against them, they should pay the costs thereof before they should be discharged. But no time was expressly prescribed, within which those costs should be paid, in order to entitle the bail to a discharge. When the statutes were revised, the provisions of St. 1817 were substantially reenacted by c. 91, §§ 12-18. And by

section 17 it was enacted, that if the surrender of the principal to the jailer be made after a writ of scire facias has issued against the bail, they “ shall, within fourteen days after the surrender, pay the costs of suit on the scire facias.” In the present case, the defendants did not, within fourteen days after they surrendered Tilton to the jailer, pay the costs of a scire facias that had issued against them before the surrender.

And the plaintifl contends that they, therefore, are not discharged from their liability as bail; the payment of those costs within fourteen days being, as he - insists, a condition precedent to their discharge. Possibly this might be so, if the defendants had no other ground of discharge besides the surrender and the payment of the costs into court after the fourteen days had elapsed. But the surrender of the principal, and the doing of the other things prescribed by the Rev. Sts. c. 91, §§ 10, 13-17, are not the only means by which bail may be discharged. Indeed, the ninth

section expressly secures to them the right to avail themselves of “ any sufficient matter in their discharge.” And we are of opinion that these defendants are discharged on another ground. Bail, in this state, are not fixed, that is, are not absolutely liable, until judgment is recovered against them on a scire facias, unless by the death of the principal after execution against him has been returned non est inventus.

Chief Justice Parsons says, that if they have not become absolutely liable to the plaintiff for the payment of the debt, they “ may plead m bar of the scire facias that an alias execution issued, on which the principal had been taken in execution; or that, since the return of the first execution, the principal had satisfied the judgment; or that the plaintiff hath released it; or that it hath been reversed or legally discharged.” Champion v. Noyes, 2 Mass. 486.

And we have no doubt that if either of these or other like facts occur 'after a continuance of the suit on scire facias, such fact may be shown in bar of the further maintenance of the action. See 3 Chit. Pl. (6th Amer. ed.) 996; Westley v. Brown, 1 Bulst. 43; Ewer’s case, Barnes, (3d ed.) 66. We are of opinion that the plaintiff, by taking out an alias execution, and committing Tilton to prison, has lost all further claim on the defendants. He has already had what the holding of his debtor to bail was intended to secure to him, namely, the body of that debtor, as a pledge for the debt. 13 Mass. 95.

He should have forborne proceedings against Tilton, if he meant to compel the defendants to pay the judgment recovered against him. And even if he had thus forborne, and were now to recover judgment against the defendants, but should afterwards, before obtaining satisfaction of such judgment, sue out an execution against Tilton and take his body, he could not thereafter proceed on his judgment against them. Higgens v. Sommerland, 2 Bulst. 68 ; Petersdorff on Bail, 386, 387, 419; Smith v. Rosecrantz, 6 Johns. 97; Stewart v. Mc Guin, 1 Cow. 99, 103.

When a creditor attaches his debtor’s goods, a third person, who becomes receiptor for them, is not discharged by the commitment of the debtor on execution and his taking the poor debtors’ oath. Twining v. Foot, 5 Cush. 512. So of a surety on a debtor’s bond given to dissolve an attachment. Murray v. Shearer, 7 Cush. 333. The receiptor’s contract is, that the creditor shall have the goods, if he obtains a judgment which slial not be satisfied without resort to them. The surety’s contract is, that the amount recovered against the principal shall be paid within thirty days after judgment.

But the commitment of a debtor on execution is only a defeasible satisfaction of the judgment, and is defeated by his taking the poor debtors’ oath. Rev. Sts. c. 98, § 16. See Hobart, 59. The contract of bail is, that the creditor shall have the means of taking the debtor’s body; and if the creditor commits the body on execution, though without help from the bail, he has what the bail contracted for, and they are discharged. Milner v. Green, 2 Johns. Cas. 283 ; 1 Archb. Pract. 289. And if he afterwards sues out a scire facias against them, such commitment, if seasonably pleaded, will bar his claim. Anon.

Skin. 120; Rogers v. Lee, 3 Har. & McHen. 407. We need not decide whether the defendants were exonerated by the plaintiff’s proceeding against Tilton, from their liability to pay the costs previously incurred in this suit. They have voluntarily paid them, and are now to have judgment against the plaintiff for their own costs incurred -since, namely, since July 7th, 1851.