
    
      Daniel Reynolds v. John J. Harrol.
    
    The principal cannot object to the claim of his surety to be repaid the loss he has incurred by the default of the principal, because the surety did not appear to the sci. fa. and take advantage of the technical objection to the recognizance. It is the duty of the principal to defend his surety from damage, by performing his obligation, or by showing sufficient matter in excuse. If he permit judgment by default, that is an admission, of record, that he had no excuse for nonperformance.
    The legal obligation of the surety in a recognizance is, in effect, the same as that of bail in a civil action — that the principal shall appear and abide by the judgment of the Court — he is, therefore, entitled to the same indemnity which is allowed to bail in civil cases.
    
      Before Mr. Justice Ward law, at Darlington, Fall Term, 1847.
    This was a summary process, brought to recover money paid by the plaintiff, at the request of the defendant, and for his use.
    It appeared that the defendant was indicted for an assault and battery, and was let to bail, upon a paper called a recognizance, whereby the defendant acknowledged himself to owe $>300, and the plaintiff acknowledged himself to owe the like sum, on condition the defendant should not appear to answer, etc. The defendant was convicted, and failed to appear to receive his sentence. Sci. fa. upon the supposed recognizance was served upon him and his surety, the plaintiff, and in default of sufficient cause shown, ah order was made that the sci. fa. be discharged, upon payment of the costs of the prosecution. For these costs a joint fi. fa. was issued against the defendant and plaintiff. The money was levied from the plaintiff, and this suit brought to recover it back.
    The paper called a recognizance was no where signed or certified by any magistrate or other officer.
    The Circuit Judge thought the plaintiff had acted in his own wrong, in neglecting to make the answer which he might have made to the sci. fa. and moreover, that if the recognizance had been regular, money paid by a surety, who enters into a several recognizance to answer for another, cannot be recovered from that other, more than money paid by one tort feasor can be recovered from his associates.
    A non-suit was ordered, with leave for the plaintiff to move to set it aside.
    The plaintiff moved the Court of Appeals to set aside the non-suit, on the following .grounds.
    
      1. That his Honor erred in ruling that the plaintiff could not sustain his action for money paid for the defendant on the liability incurred by the instrument offered in evidence.
    
      2. That the non-suit was, in other respects, against the law.
    Moses, for the motion.
    
      Barton v. Keath, 2 Hill, 542. The order to estreat is the judgment on the recognizance. There is no difference between a recognizance and a bail',bond.— Act of 1839, p. 14; Fell on Guaranty, 1; 1 Com. Dig. Bail, a. 656, and g. 1, page 670; Fisher v. Fallows, 5 Esp. 171.— .Surety, paying, may recover back from principal. These parties were not tort feasors, but this was a matter of contract. This is not like the payment of costs by a surety, suffering himself to be sued — here the costs are incurred by the principal.
    Dargan, contra.
    
   Frost, J.

delivered the opinion of the court.

The principal cannot object to the claim of his surety to be repaid the loss he has incurred by the default of the principal, because the surety did not appear to the sci.fa. and take advantage of the technical objection to the recognizance, of which it does not appear that he was informed, and it is most probable he was not. The neglect of the magistrate to certify the recognizance, even if the defendant had been informed of the legal requirement, was a fact which he could only have discovered by an application to the clerk to inspect the recognizance. The recognizance was estreated against the principal also; and he cannot require that the surety should be held to greater diligence than he has used himself. It is the duty of the principal to defend the surety from damage, by performing his obligation, or by shewing sufficient matter m excuse. If he permits judgment by default, that is an admission, of record, that he had no excuse for non-performance; and if he did not take the technichal objection which, if valid, would have discharged both, he cannot allege, in his defence, that the surety was guilty of negligence, in not having taken it.

The second ground of non-suit excepts the surety, in a recognizance, from the general rule that the principal shall refund to his surety any payment he may have been compelled to make in consequence of the default of the principal.— Bail, in a civil action, have this claim for indemnity. The legal obligation of a surety in a recognizance is, in effect, the same as that of bail in a civil action, that the principal shall appear and abide by the judgment of the Court. The diversity of the judgments does, in some respects, vary their liability; but the surety to a recognizance is recognized, in law, as bail — having the same power over the principal, and liable for the same default. In Highmore on Bail, 204, it is affirmed, on his mere authority, without the sanction of a case in support of the dictum, that the principal in a recognizance is not liable to the bail for the expense which the bail may incur on his account.

Petersdoff, in his treatise on Bail, 517, referring to this dictum of Highmore, says it is now well settled that the bail may recover the expenses he has incurred incidental to his engagement. No practical mischief can result from allowing bail in a recognizance the same indemnity which is allowed to bail in civil cases; and no case has been found in which any distinction is made, in this respect, between them.

The motion is granted.

O’Neall, J. Evans, J. and Withers, J. concurred.

Motion granted.  