P. H. AND R. H. COHOON vs. MORDECAI MORRIS, J. C. B. EHRINGHAUS, W. W. GRIFFIN, AND J. J. GRANDY, 1 Jones 218

Battle, J. It seems to us, that the plaintiff was not entitled to a judgment against the defendants,, or any one or more of them, upon' either of the motions which: he submitted to the Court, and that his íTbnor was right in refusing each and all of them. Whether the defendant Morris was ever discharged from arrest, under a capias ad satis* faciendum by the plaintiff, so that he could not be taken-in execution again, as contended By his counsel, we need not decide.

Supposing the-arrest on the 14th of May, 1-851!,. proper, and-the bond'then given with the defendants Williams, Ehringhaus and Griffin, valid, the- bond, in connection with the execution, was in the nature of process to compel an appearance to answer at the next term of the County-Court. Winslow v. Andeeson, 4 Dev. and Bat., 9. At that term, the proceedings against them were discontinued by the plaintiff himself, and a new bond.’ was taken from the debtor, with other sureties, for his appearance at the next succeeding term..

This proceeding, which was in the nature of a new suit,, was kept in Court by regular continuances, until March Term, 1852, when the defendant, Morris, being-called, and failing to appear, the plaintiff moved! for judgment, not against the sureties on the last bond, who were in-legal contemplation present in Court and ready to answer-the motion, but against the sureties to the bond of May 1851, as to whom the plaintiff had discontinued his suit nine months before, and who were therefore not before the Court,, to have a judgment rendered against them.

That judgment was therefore irregular, and ought not to have been given,. Winslow v. ANdeRson, ubi supra. From it, the defendants had good reason for an appeal,, and the Judge, who presided in- the Superior Court, very properly refused to affirm it.- The plaintiff then moved for judgment against the principal and sureties to the last bond, and that was also refused, for the very sufficient, reason, that the bond, or rather the parties to it,, were not'before the Court. Certainly the appeal in the first suit or proceeding, did not take up the second suit or proceeding,, which was- entirely distinct !from it.

If the two first motions ‘Were properly refused, ¡ímquestionably the last was, for no judgment could be given • against Ehringhaus, except.upon one or the other bond, and ■we have just declared,'that no judgment,could be rendered ¡against the obligors to either of them.. The several motions' of the plaintiff "being refused, the - judgment .against him. for costs was right, and must be ■•affirmed. . Judgment, affirmed.