
    *Ross v. Randolph.
    [October, 1804.]
    Special Bail — Absence of Principal at Time of Undertaking:. — Plea by the special bail, that the principal was on the 14th of November, 1797, confined by legal process in Philadelphia, was unavailing.
    Randolph brought an action of debt against Banks in the county court; and Ross, on the 7th of November, 1797, became special bail for Banks; who was then confined in jail in Philadelphia, upon civil process. During the imprisonment of Banks in Philadelphia, Randolph obtained judgment in his suit against him; and issued a ca. sa., which was returned non est inventus: Whereupon he took out a scire facias against Ross, the bail, returnable to March court 1798. The county court, on the motion of Ross, allowed him forty days, after Banks should be enlarged from his confinement in Philadelphia, to surrender the principal in discharge of his recognizance. Which order was afterwards, upon a writ of procedendo from the district court, set aside; and thereupon Ross pleaded, That Banks was, on the 14th of November, 1797, as well as at the time of the filing the plea of Ross, in confinement, by virtue of legal process, in Philadelphia. To which the plaintiff demurred; and, on the 7th of August, 1799, Ross brought Banks into the county court, and offered to surrender him in discharge of his recognizance, accompanied with an additional plea, that since the last continuance, to wit: on the ISth of May, 1799, and not before, Banks had been liberated from his confinement in Philadelphia; and that Ross upon that day took him, and then had his body in court ready to be surrendered in discharge of the recognizance. To which latter plea the plaintiff also demurred; and the county court gave judgment for the plaintiff upon the demurrer. Ross appealed to the district court, where the judgment was affirmed; and thereupon he appealed to the court of appeals.
    *Warden, for the appellant.
    Banks’s absence was involuntary, and therefore it ought not, according to the principles of justice and humanit3, to prejudice his bail. The terms, relative to the time within which Ross was at liberty to bring in Banks, were suspended in consequence of the proceedings in the district court, and finally dropt; of course they have nothing to do with the case. The scire facias does not state a ca. sa. and return: which is absolutely necessary; because the plaintiff ought to state his whole case. Heighm. Bail, 64, 74. It was not necessary to take this exception in pleading, because it appears in the record without. Banks was restrained of his liberty against his consent. Suppose he had been confined in some court of this state, the county court might have granted a writ of habeas corpus, which would have relieved the bail; but that could not be done here; and therefore, as there was no fault, his absence ought not to prejudice his bail. In 2 Dali. 302, it is held, that the proceedings in the courts of one state are to have the same effect in another state: And here, the court of Pennsylvania has restrained the principal, which the courts of this state ought to regard, and give it the same effect, as if it was done here. The 1 Dougl. 45, shews that an involuntary absence of the principal will excuse the bail. The same thing may be inferred from 1 Burr. 340; and was expressly held in 6 Term Rep. 50, 247; which are decisive in the present case. Por here it was wholly impossible for Ross to have surrendered him; because he was in custody against his will, and Ross could not take him out. It is therefore agreeable to the rules of the most exact justice, that the bail should be exonerated.
    Randolph, on the same side.
    The motion of Ross for leave to surrender at a future day was proper, and the court was right in allowing it: for courts possess the power of enlarging the time, in all cases, for the purposes of justice. 1 Burr. 301; 15 Vin. 499; 1 Com. Dig. It was upon this principle only that the bail were originally allowed to *surrender the principal after the return of the ca. sa. And in 1 Stra. 419, the time was extended while a writ of error was depending: which is conformable to what has been held in other cases; as in 1 Stra. 443; 2 Stra. 872, 1270. All these books shew the power ; and, if so, the only question will be as to the propriety of doing it in the present case. The time had not expired for indulgence; because he might have surrendered him at the rules. Rev. Code, 79. Imprisonment is an excuse for not complying with a recognizance, 18 Vin. 166: And Co. Bitt. | 436, 437, 438, shews that continual claim may be excused for the same reason. 3 Black. 299, gives a right to a warrant to apprehend his principal ; but here such a warrant could have had no effect. The order of the district court prevented the compliance of Ross : for the effect of that order was to rescind the order of the county court, allowing the forty days.
    Copland, contra.
    It is not necessary that the scire facias should state, that a ca. sa. had issued, and been returned not found. Cro. Jac. 97; 2 Bd. Raym. 1097. The undertaking was voluntary on the part of Ross, who could not have tacked it to the condition of being permitted to surrender the principal at a longer time than the general rule of law allowed. The absence of Banks grew out of his own act. He went with his own will to Philadelphia, and if he was confined there, it was his own fault, as he ought not to have left his bail in that situation, or the creditor in danger of losing an opportunity of enforcing payment. His absence therefore is no excuse: and the county court had no authority to extend the time for any such cause. The cases cited on the other side do not apply: for in those, there was involuntary restraint; but, here, it proceeded from the voluntary act of the principal. Besides, in those cases, the absence issued out of an act of law in the first instance; and therefore the inability was not culpable; but here it was not a consequence of any act of law, but it flowed *from the free act of the principal himself: Especially as it appears that his being summoned to Philadelphia as a witness was in consequence of his solicitation. Of course it is but with an ill grace that his confinement is now insisted on.
    Hay, on the same side.
    The plea is, that Banks was confined on the 14th day of September; and that this put it out of his power to surrender him. But that is not material; for Banks was in custody before Ross became bail. The Pennsylvania proceedings prove this, as well as that Ross knew it at the time; which proceedings are part of the record in this cause. 3 Black. 317; Co. Bitt. 268; 18 Vin. 176. And the court will decide upon the whole record. Hob. 56; 3 Co. 52, b. ; 8 Co. 133; 1 Call, 127. Of course Ross, having entered into the engagement with a full knowledge of the situation of the principal, cannot complain of the consequences; for it was his own folly to put himself in that predicament. It is not true, that confinement, even in another county of this state, would be an excuse for not rendering himself in custody ; and much less ought confinement in another state to have that effect. The very object of bail is to secure the creditor against the consequences of the principal’s going away without paying the debt. Which is the thing that has happened here, and the undertaking was to guard against it. How monstrous then, to object the act, as an excuse, which was the very thing that the proceeding was intended to guard against! It is not true, that it was impossible for Ross to have complied; because, by paving the money due the creditor in Philadelphia, he might have released Banks, and enabled him to appear in discharge of his bail. But the argument, that this ought to be considered in the same manner, as if the confinement was in Virginia, is not correct; because it is not true, that Ross could have seized him in Pennsylvania, even had he been at large. For the states are sovereign and independent of each other. 2 Wash. 298. The case, in short, is no more *than this; that Ross undertook that - Banks should not be absent; he how-
    ever was absent, and that is offered as an excuse for non-performance, which is absurd. Even the death of the principal will not in all cases exempt the bail, 6 Term Rep. 284, and much less the voluntary absence of the party. For his absence was voluntary; because the process of Pennsylvania did not run into Virginia, and therefore the obedience of Banks was his own free act. The cases of exoneration in England, all proceed on the ground that the actual surrender would be nugatory. Those in 6 T. Rep. SO, 133, were expressly so: for the moment the principal there was surrendered, he must have been sent out of the country. In the same book 24V, the felon must have been transported. In Doug. 45, the peer could not have been confined. And 2S Vin. 433, 434, goes upon the same ground; because the bankrupt there must have been immediately discharged: So that the surrender would have been altogether fruitless. But that was not the case here. For the surrender would not have been useless ; because it would have been the means of compelling payment of the debt. It was not necessary to stale the ca. sa., and return in the scire facias; for the precedents are all the other way. Lili. Entries, 6S7. Besides it is a mere judicial writ, and the exception, if good, ought to have been pleaded in abatement. 1 Bac. 10, IS; 3 Black. Rev. Code, 112. The case in 2 Dali, does not prove that an arrest in another state will release the bail. The court had no power to extend the time. The act of assembly, Rev. Code, 79, prescribes the period within which the bail must surrender: and therefore the provisions of that act supersede all reasoning drawn from cases; because the language of the act is imperative, and must be obeyed. But the order itself was afterwards rescinded; and' therefore if it would have been effectual, yet, in fact, it was not done; and therefore does not avail the defendant. Nor is it material that it was set aside in consequence of the opinion of the district court. For still it was set aside from whatever cause proceeding, and that supports my argument.
    *Randolph, in reply.
    The motion for enlarging the time for the special bail to make the surrender, was proper. 1 Burr. 301, proves the general powers of the court in such cases; and so does IS Vin. 499; 1 Com. Dig. 693. We, therefore, have only to shew, that our application was reasonable : for it will not repeal the act of assembly, as was alleged upon the other side. Because the act does not interfere with the existing powers of the court, but leaves them as they were before. The first indulgence of courts to the bail, proceeded from this power; for there was no act of parliament which authorized it. It is like the cases of writs of error mentioned by me the other day. 1 Stra. 419, 443 ; 2 Stra. 872, 1270. And it makes no difference, that there was a probability of the judgment’s being reversed in those cases; for that argument still admits the power. In 3 Black. 292, it is stated that, without the power of enlarging the time, the warrant to arrest would be ineffectual. The result is, that the appellant asks no more than what, in principle, has been granted before. Thus, if a man were too sick to be removed, it would save a default in a real action. So a recognizance for appearance may be arrested on account of an intermediate arrest of the party recognized, 18 Vin. 166: and although 10 Mod. 153, is cited as conflicting with this doctrine, yet there is no ground for that opinion; because that case distinguishes between a civil action and a criminal prosecution, leaving the first subject to the operation of the other cases; and those cases are confirmed in principle, by Co. Litt. 436-7-8. Of course, the same rule ought to prevail here, where the bail could not surrender from inevitable hindrance. 3 Burr. 1782. The effect and authority of precedents is well illustrated in Hob. 270. Suppose the principal confined in the penitentiary, for six months, there the exoneretur ought not- to be absolute; but the time for surrrender enlarged, in order to prevent injustice. The present case is full as favourable. For, at the time of the application, no forfeiture had incurred. It does not appear from the record, that Ross knew that Banks was con-302 fined; and ^therefore there is no argument to be drawn from his becoming bail with a knowledge of the confinement. But, if it did, that will not vary the cas.e; because he might have reasonable grounds for belief that he would be discharged, as he had gone under the protection of a subpoena. Ross’s undertaking was upon the usual terms only, and these, necessarily, contained exceptions, as the act of God, &c. The delays of Banks were all before Ross became bail, and therefore do not influence the question. The procedendo vacated the order for enlarging the time; and therefore Ross was excused for not complying with it. Nor was it in his power to make a further application until the ensuing quarterly court. There is no difference in principle between this case, and that of the alien sent away in England; because the government having the power to send away the alien, the bail undertook subject to that contingency. It made no difference, that, in that case, there was an intervening act of parliament, because the king might have done the same thing by virtue of his prerogative.
    But upon the demurrers an exoneretur ought to have been entered. If the defendant, after the bail undertook, had been demanded, for a crime, by the state of Pennsylvania, it would have been a sufficient ground to suspend the proceedings; for the law never forces a man to an impossibility. Again, if the defendant was so sick, as that he could not be surrendered without danger of his life, in that case, also, time ought to be allowed. In like manner, if a maniac were confined in the madhouse, an opportunity to surrender ought to be given. A journey from one state to another is not like that of a voyage to China, or any other foreign country: for the former is like going from one county in the state, to another: and in the latter case, a detention would be a sufficient cause for enlarging the time until the obstacle was removed. In 1 Bos. & Pull. 138, it was decided that a man not liable to bail in Prance, should not be held to it in England. The only limit, therefore, ought to be the point at which fraud would commence. Thus, if the sum, on which the principal *was confined in another state, was very small, it would be an evidence of fraud; because the money might be paid, and the impediment removed. But here the sum was too great for it to be required of the bail to pay it. The possibility of the discharge from the subpoena or any other cause is a- sufficient excuse, 1 Bac. Ab. 650; and therefore, under all the circumstances, the court ought to relieve the bail.
    Cur. adv. vult.
   TUCKER, Judge.

Ross, on the 7th day of November, 1797, became special bail for Henry Banks, in an action of debt, at the suit of Randolph, at the time that Banks was actually imprisoned in Philadelphia. Judgment being afterwards obtained against Banks, a ca. sa. was issued, and “not found,” was thereon returned; whereupon a scire facias was issued, and executed, against Ross, returnable to March court 1798, for Henrico county. The court made an order allowing Ross forty days after Banks should be enlarged, for his surrender, &c. Upon a writ of procedendo from the district court, this order was set aside. Whereupon Ross, at the rules, filed a special plea, alleging that Banks, on the 14th day of November, 1797, and afterwards, on such and such days therein mentioned, and at the time of pleading his plea, was in confinement, by virtue of legal process, in Philadelphia. But the plea does not allege that he continued in confinement from the first of those days to the last. To this plea, the plaintiff demurred. On the 7th of August, 1799, Ross brought Banks into court, and offered to surrender him, and at the same time offered a plea, that since the last continuance, to wit, on the 15th of May, and not before, Banks had been liberated from his imprisonment in Philadelphia, and that, on the same day, he took him, and then had his body, &c. To this plea, likewise, the plaintiff demurred generally. The county court gave judgment for the plaintiff upon the demurrer; and upon an appeal to the district court, the judgment was, there, affirmed; from which an appeal was taken to this court.

*The appellant’s counsel insisted, 1. That the motion for enlarging the time for surrender was legal; and consequently that the county court did right in allowing it. 2. That the disability of Ross to surrender Banks, arose from an act of law in an independent state; and therefore was a just ground for an exoneretur. 3. That the tender of Banks’s body by Ross in discharge of his recognisance, ought to have been received.

As to the first point:

In England, by rule of court in the king’s bench, the bail shall have eight days after the return of the writ to bring in the body of the principal, 1 Ld. Raym. 721; and several cases were cited to shew, that the courts there have extended the time of the surrender, under particular circumstances. 1 Stra. 419, 443. But those cases were during the pendency of a ■writ of error. It was also contended, that the surrender being impossible at the time of the scire facias returned, the court might enter an exoneretur, where the principal was made a peer. 1 Dougl. 45. But the cases are not alike; for Banks was in prison in Philadelphia when Ross undertook for him; whereas, in the other case, the principal was made a peer, after the undertaking of the bail. The law gives, to the bail, a warrant to take his principal, if he be at large; but a peer cannot be taken upon any such warrant: and therefore the surrender became legally impossible by matter ex post facto, and not by matter antecedent. It appears from this record that Banks was committed to jail at the suit of John Ery, on the 19th of February, 1797; and Ross’s undertaking was not until the 7th of November following. If there was an impossibility to surrender him in consequence of this imprisonment, Ross knew it at the time, and it was his folly to undertake to do an impossible thing. But it was well observed, that there was no impossibility in the case, as Ross might have procured his enlargement, either by paying the debt for which he was arrested in Philadelphia, or by bailing him, or procuring him to be bailed, if he had thought proper to comply *with his undertaking in this suit. The cases of the aliens in England, 6 T. Rep. 50, 52, 247, and that of the convict, Ibid. 247, were relied on in favour of Ross, but in fact make against him. The impossibility of surrendering the principal in those cases, did not exist at the time of the undertaking; but, in that of Ross, the record which he produced, and the evidence offered, to the court, in support of the motion, prove that the impossibility (if such indeed there was) did exist, at the time he undertook; and that he was con-usant of it, is fairly presumable from that evidence, inasmuch as Banks had been arrested in Philadelphia near nine months before. The case of Coles v. De Hayne, 6 T. Rep. 52, 147, will shew that the court, in exercising its legal discretion, did not lose sight of the possibility, that the bail might be in fact indemnified by his principal; an enquiry which the county court of Henrico entirely omitted to make of Ross. That court, not satisfied with enlarging the term for the surrender of Banks, contrary to all judicial precedent, undertook to decide what ought to be done in case he should die. The proceedings of the 9th and 10th of March, 1798, therefore, appear to me to have been contrary to sound legal discretion, and consequently erroneous.

But let us suppose, that there was no error in those proceedings, and that the court exercised a sound discretion in extending’ the period when the surrender might be made? Has Ross complied with the .terms of the order? Forty days from the time that Banks should be discharged from his imprisonment in Philadelphia, were allowed by the court for bringing in his body; but more than twice that period elapsed before he was produced by his bail. The terms, therefore, not being complied with, Ross, even under that point of view, can claim no benefit from the order for enlarging the time.

But it has been said, that between the time of Banks’s enlargement on the 15th of May, and the day when his body was tendered in court, to wit, on the 7th of August following, no surrender could be made, because there was no court.

*This admits of two answers:

1. By the act of 1792, ch. 66, sect. 31, the surrender might have been made to the sheriff; which would have been as effectual, as if it had been made to the court.

2. By a fair interpretation of that clause, and of the 59th section of the county court law (1792, ch. 67, sect. 59), which directs that the proceedings of those courts, in common law cases, shall, as nearly as may be, conform to the practice of the district courts, I am strongly inclined to believe the surrender might have been made at a monthly court, as well as at a quarterly session. These acts, having passed at the same session, are to be expounded with reference to each other.

A few words more' upon the merits of this case, upon the hardship of which, such prodigious stress has been laid by the appellant’s counsel.

If Banks be insolvent, his creditor must lose a just debt, or Banks must pay it. The creditor was on the point of obtaining judgment for his debt, when Ross, either to relieve himself from his undertaking as common bail for Banks, or as a mere volunteer, offered himself as security that Banks should pay the debt, or render his body in execution in satisfaction of the same. It is immaterial what were his inducements : In the former case, the creditor had already acquired a legal obligation for his debt, which could only be set aside by the appearance bail incurring another legal obligation, more beneficial to the bail, but not less obligatory in law, or ecfuity, in favour of the creditor. Admitting Ross to be perfectly innocent, and perfectly ignorant of Banks’s situation, this could not in the least affect the justice of the plaintiff’s case, either at law, or in equity, nor even in any moral point of view. Regarding the situation and the claims of the creditor of Ross, will the counsel for the latter affirm that his claim to relief is stronger than the creditor’s prior legal and equitable claim to be paid his debt? Hardihood itself could scarcely make the assertion.

*But if Banks be solvent, our law affords his special bail a speedy and summary remedy against him, I apprehend, Virg. Haws, 1794, ch. 75; for, as at present advised, I think the word recognizance, in that act, will bring a special bail within the benefit of the statute; for the execution against the special bail is grounded upon his recognizance; and the scire facias is only in the nature of a warning to him to shew cause, if any he can, against emanation of the execution; and, if he do not shew that his recognizance hath in fact never been forfeited, the execution issues of course. Therefore Ross has no hardship to complain of.

I have now done with the merits of the case; in which I have incidentally, as I conceive, touched upon all the points insisted upon by the appellant’s counsel. I shall now proceed to consider the case as it stands upon the pleas and demurrers.

1. As to the pleas:

The scire facias recites the judgment against Banks, and that Ross, on the 7th of November, 1797, undertook for him as special bail; and, in the usual form, calls upon him to shew, if any thing he hath, or can say, why the plaintiff should not have execution against him. The plea alleges that Banks, after- the rendition of the judgment, and at the time of issuing the writ of capias ad satisfaciendum, to wit: on the 14th of November, 1797, and on divers other days in the plea mentioned, (but not alleging for the whole time between the first and last of those days, and at the day of pleading that plea,) was and is legally imprisoned in the city of Philadelphia, in four different suits, &c. “as will appear more at large by copies of the records and proceedings in the said suits or actions, now here in court produced,” although none such appear in this record: So that since the time of the rendition of the judgment aforesaid, it hath not been, nor yet is, in the power of the said Ross to render the body, &c. on the said 14th day of November, 1797; or on either of the other days in the plea mentioned. To this plea, the plaintiff demurred.

*Upon a demurrer, the whole of the record is before the court, and they are to decide upon it accordingly. It is also a rule in pleading, that the defendant must answer to the whole matter contained in the plaintiff’s allegation; or it is bad, upon a general demurrer. This plea alleges no reason why Ross did not, or could not, surrender the body’ of Banks at any time between the 7th and 14th of November, 1797. Nor does it allege any reason why he might not have surrendered the body on any other day, or days, than those particularly named in the plea; but relies altogether on his not being able to do it on either of those days, only, leaving all the rest of the time, except five days particularly named in the plea, unanswered. This plea, therefore, is clearly bad in substance; and judgment on the demurrer thereto was rightly given for the plaintiff.

2. The second plea alleges, that Banks was released from his confinement on the 15th of May, 1799, and not before; and concludes with a tender of his body then in court, to wit, 7th August, 1799.

This plea is in nature of a supplemental plea to the former; and is pleaded as a plea puis darreign continuance. Unless it be connected with the former, it is perfectly unintelligible. If taken as an amendment to it, it is liable to the same objection as the first. So that either way it is bad. And judgment was rightly given for the plaintiff upon the demurrer thereto.

Upon any ground upon which I have been able to consider this case, I am clearly and decidedly of opinion, that the judgment of the district court, affirming that of the county court, ought to be finally affirmed in this court.

ROANE, Judge.

I should find myself loath to admit, as was argued by one of the appellee’s counsel, that the general regulation in our act of assembly, prescribing the time within which a surrender of the principal may be made, deprives the court of their discretionary power to grant further relief to the bail, where his case may entitle him to such interposition. I rather consider that act as laying down a general ''rule, and sanctioning by legislative authority, a system of decisions on this subject which had already taken place in the courts. It never meant to abridge the power of the courts in relation to cases, the equity whereof did not fall within the just operation of the rule. It never meant to affect the power of the courts, for example, in cases where between the date of the recognizance, and of the time limited for the surrender, an act of law or of God, had rendered it impossible, or vain and fruitless, to make such surrender. These acts being beyond the control of the bail, and, in some cases, nugatory, and the courts considering the engagement of the bail in relation to the then situation of the parties, (6 Term Rep. 51) posterior circumstances, of the class just mentioned, will excuse the bail: But I can find no authority for excusing the bail on circumstances coeval with the recognizance, and releasing him from his obligation, on the ground of a mere state of things which existed at the time, and was therefore probably within the contemplation of the party entering into the recognizance.

I need not, however, scan these pleadings critically, to find out whether Banks were actually in custody at the date of the recog • nizance or not. I consider this circumstance as wholly immaterial.

If he were not then in custody, and was in Virginia, his going out of the state, which was entirely his own act and voluntary, was one of the very circumstances which the policy of the law had in view, in requiring the recognizance. His being arrested in Philadelphia was entirely consequential on his having left the state of Virginia.

If he were then in Philadelphia, though not in custody, the bail warranted that his (Banks’s) situation was not such as should prevent a delivery of his person. It was Banks’s own situation in respect of debts produced by his own acts, and not by an act of government, of God, or the law, (except so far as the application of the law was produced by that situation,) which caused his imprisonment.

I presume that the bail stipulates against impediments arising from the acts or situation of the principal himself, '^except where such situation has been produced by causes of the class before mentioned, over which neither the principal nor the bail can have any control. I suppose, also, that it cannot be said that the predicament of a debtor exhibits a situation of this sort, i. e., one beyond the control of the parties.

But if Banks were actually in custody at the time, which seems to have been the fact, the case is still the same. This situation does not create an impossibility of surrender within the time. If it did, the condition of the recognizance would be discharged, and the obligation would stand single. 1 Bac. Ab. 649.

It may be possible to surrender him in due time, although in custody at the date of the recognizance, by various means; as payment of the debt, and a consequential release; or it may, intermediately, be found, that the principal owed nothing, and so obtain his discharge.

On the whole, I find it difficult to say much on a case which is so extremely plain. I never had the least doubt even on the former argument. As for the justice of the case, it may probably be with the appellee, and the appellant may stand indemnified for aught we know. Be this, however, as it may, the general provision of our act of assembly proscribes the relief granted by the county court, and the appellant cannot sustain his application upon any of the grounds on which, as far as I can discover, the discretionary power of the court has been exercised. I am therefore of opinion that the judgment ought to be affirmed.

CARRINGTON, Judge.

I concur that the judgment ought to be affirmed.

LYONS, President.

The act of assembly has prescribed the time for surrendering the principal, and the court was bound by it. I am therefore for affirming the judgment.

Judgment affirmed.  