#### ABRAHAM HOWZER vs. MOSES DELLINGER.

Although the bail may surrender their principal, and the surrender be entered of record at the term when judgment is obtained, yet if plaintiff does not pray the committal of the principal in execution and the latter should afterwards go at large, this is not a discharge of such principal from execution by the plaintiff.

The bail on a plea to a sci. fa. seeking to charge them, cannot take advantage of any irregularity in the ca. sa. against the principal, but they may shew that the ca. sa. is void.

A ca. sa. must strictly pursue the judgment and be warranted by it, as if the judgment be against two or more, the ca. sa. must issue against all — otherwise it is void.

The case of Findley vs. Smith, 3 Dev. Rep. 247, cited and approved.

This was an appeal from the judgment of Lincoln Superior Court of Law. at March Term, 1841, his Honor Judge Manly presiding. The following is the case transmitted, to the Supreme Court.

This was a scire facias against Moses Dellinger as bail of one Lawson Henry. Pleas, nul tiel record, surrender of one of the principals, Mary Henry, no capias ad satisfaciendum. One of the questions in this cause was, whether the paper introduced which purported to be a ca. sa. against Lawson Henry alone was a sufficient capias ad satisfaciendum to warrant the proceedings against the bail. A judgment in an action of trespass had been rendered against Lawson Henry and Mary Henry at Fall Term, 1839, at which term the defendant, Moses Dellinger,' on Wednesday of the same term, brought into court Mary.Henry, one of the defendants in the original suit, and surrendered her in discharge of himself as her bail. The following is a copy of the entry, which was all the evidence in the cause upon this question. “Moses Dellinger brought Mary Henry into court & surrendered herto the court in discharge of himself as bail of the said Mary Henry.” The defendant’s counsel insisted *476that this entry shewed that Mary Henry, a co defendant m originM suit, had been in execution and permitted to go at large by the plaintiff, whereby the defendant was discharge(j as ba.il of Lawson Henry as well as of Mary Henry. The defendant’s counsel further insisted that the ca. sa. being against Lawson Henry alone, when the judgment was against Lawson and Mary Henry, it was absolutely void, and therefore would not support the proceedings against the defendant as bail of the said Lawson. The court charged the jury that if one of two defendants were in execution and discharged or permitted to go at large by the consent of the plaintiff, it would amount to a discharge of the bail for the other defendant also, but that the entry upon the docket during the term at which the trial took place, “that the defendant Dellinger had surrendered Mary Henry in discharge of himself as her bail,” without any evidence that she was ever in execution, would not discharge the defendant Dellinger as bail of the said Lawson Henry. Also the court further in-instructed the jury, that regularly the capias ad satisjaciendum should follow the judgment, and where the judgment was against several defendants the execution should issue against them all, if living; but issuing the execution againstone of the defendants, instead of both, as in this case, did not render the execution absolutely void; that it was an irregularity, for which the court, at the instance of the defendant in the execution, might, and probably would, set aside the execution; but still the defendant Dellinger could notin this way avail himself of the irregularity, and that the paper constituted a sufficient ca. sa. to warrant the sci.fa. against the bail. Under this charge the jury found for the plaintiff, and the court adjudged there was such a record. A new trial having been moved for and refused, and judgment rendered for the plaintiff, the defendant appealed to the Supreme Court.

Boyden for theplaintiff.

Execution may issue in some cases against one defendant alone. 2 Rolle’s Ab. 468. Douglass v. White, Cro. Jac. 373: An irregularity in an execution can only be taken advantage of by the defendant in the *477execution. Jackson v. Bartlet, 8 John. Rep. 281 — 2 Tidd’s Pr. 1044. Downey v. Dunn, 2 Bos. & Pul. 47. Gilíespie v. White, 16 John. 117. Shirley v. Wright, 2 Ld. Ray 775. As to the surrender of the defendant Mary Henry, this being at the term when the judgment was rendered, the plaintiff could not pray her in execution; he could only have execution after the term expired, and then might take execution at his election against her goods or her body.

Win. H. Haywood, jr. for defendant.

Daniel, J.

The plaintiff sued Lawson Henry and JVTary Henry in an action of Trespass. Dellinger became bail for each. At the term at which judgment was obtained against both, the bail surrendered Mary Henry, and the same was entered of record. The plaintiff then did not move the court that she should be committed in execution. As she never had been in execution, at the instance of the plaintiff, he of course could not and did not discharge her from execution. The opinion of the Judge upon this point of the case, to wit, that the bail of Lawson Henry was not discharged, was correct. Secondly, on the trial of the issue made up on the plea “ no ca. sa. against the principals,” the plaintiff-offered in evidence a ca. sa. against Lawson Henry alone. The defendant objected to the evidence, and contended that the ca. sa. was void, as it was not as broad as the judgment. The judge, however, was of opinion that the execution was not void, but irregular only; and that the bail on this sci.fa. had no right to take advantage of the irregularity, and that it was sufficient to support the plaintiff’s side of the issue. .We, after much reflection, are induced to think that the Judge erred in admitting this document as a sufficient ca. sa. A writ of ca. sa. against the principal must be sued out and returned non est inventus, before any proceedings can be had against the bail. 1 Barn. & Alder. 212. Petersdorf on Bail 335. Rev. St. c. 10, s. 3. In England, the practice is to direct the ca. sa. to the sheriff of the county, where the venue was laid; and the writ must lie, the four last days exclusively before the return, in the sheriff’s office. The sheriff’s return of non est inventus is a matter of course, with*478out making any attempt to arrest the principal; theca, sa. intended, merely as a notice to the bail of the plaintiff’s intention to proceed against them. 3 Burr. 1360. 1 Arch. pr 320. un(3er our statute, the ca. sa. is required as well for the benefit of the bail as of the plaintiff, and the ca. sa. ought to be issued to the county where it maybe executed by the actual arrest of the defendant, if that can be done. The execution, required by our act, was intended to be an effectual one. Findley v. Smith, 3 Dev. Rep. 247. It is true that the bail cannot take advantage of any irregularity in the ca. sa.; as if it be irregular in its teste or return, or if it be sued alter a year and a day from the signing of the judgment. 2 Ld. Ray. 1096. 2 Burr. 1187. 1 Arch. Pr. 320. But if the writ is void, he may shew it. In 1st Arch. Pr. K. B. 283, it is said that care must be taken that the writ of execution strictly pursue the judgment, and be warranted by it; otherwise it is void. Thus upon a judgment against two (as in this case) you cannot sue out a separate capias against one. Rol. Abr. 888. 6 Term R. 523 — Nor a capias against one and an elegit against another. Cro. Eliz. 573-4-5. Co. 26-7. 2Bac. Abr. (Execution) G. 2 Hob. 2-59. Cro. Car. 75. If, as we have seen, the capias is here intended for the benefit of the bail, as well as the plaintiff, a writ of that kind against one only of two defendants might deprive the bait of important benefits; for if the capias had issued against both, strictly in pursuance of the judgment the other defendant might have been forced to discharge the judgment, and then the bail would have been relieved. We are of the opinion that the capias against Lawson Henry upon a joint judgment, obtained in an action of trespass against Mary Henry and Lawson Henry, is void, as to the bail. There must be a new trial.

Per Curiam, New trial awarded.