#### WILLIAM S. NORMENT vs. ISAAC S. ALEXANDER.

A bail, against whom a scire facias has been issued, cannot avail himself of the defence, that his principal has been arrested on a ca. sa., at the instance of another person, and discharged under the insolvent debtor’s law.

The cases of Crain v. Long, 3 Dev. 371, and Oranbery v. Pool, 3 Dev. 156, cited and approved.

Appeal from the Superior Court of Law of Mecklenburg County, at the Special Term in November 1846, his Honor Judge Pearson presiding.

This is a scire facias to subject bail. At the return. term the defendant pleaded specially, that Marcus S. Alexander, his principal, was arrested on a ca. sa. at the instance of and was

duly discharged as an insolvent debtor, having previously given the plaintiff in this action proper notice. To this plea there was a demurrer, which, upon argument, was sustained, and the plea overruled. The defendant ap« pealed.

Hoyden and Wilson, for the plaintiff.

Osborne and Alexander, for the defendant.

Nash, J.

Wc concur in the judgment of his Honor, who tried the cause below. The discharge of the principal, under the insolvent debtor’s law, was not a discharge of the debt. Its only effect was to exempt the body of the debtor from an arrest, at the instance of that plaintiff or any creditor duly notified, upon their subsisting debts, leaving his property, subsequently acquired,..still liable. Crain v. Long, 3 Dev. 371. This protection, however, is *72personal to the debtor. He may or may not avail himself of it, at his pleasure. In this case, there was nothing to prevent the bail from surrendering the person' of his debtor, in discharge of himself. For the defendant might arrest him to acquit himself of his liability. The obligation, into which the defendant entered, when he became the bail of Marcus S. Alexander, was, that, if he, the principal, did not surrender himself, or pay the judgment, which might be rendered against him, the bail would pay it, or surrender the body of his principal, if alive. Under the Act of 1777, the payment of the judgment, the death of the principal or his surrender can alone be pleaded by the bail in bar of the action. Granbery v. Pool, 3 Dev. 156. The special plea in this case was no bar, and the demurrer was properly sustained and the plea overruled.

Per Cueiaw.

Judgment affirmed.