
    Stephen Bean versus Phinehas Parker and Benjamin French.
    Upon a Scire Facias against bail, they shall not be permitted to deny the arrest of the principal.
    Nor is it any defence in such suit, to deny that there is any record of the defendants’ having become bail.
    A submission, by a rule of court, of the original action, and of all demands between the parties, to referees, operates the discharge of the bail; although judgment may in fact be rendered against the defendant for a less sum, than if no such submission had been had.
    Bail are not liable, unless the bail bond be executed by the principal.
    This was a Scire Facias against the two defendants, as sureties upon a bail bond, alleged to have been made by them upon the arrest of one Aiken, in a suit brought by the plaintiff against Gilmore Sf Aiken, partners in trade. The declaration alleges a judgment of this Court, recovered against the said Gilmore &f Aiken; an execution issued thereon, with non est inventus as to Aiken; and that the defendants became bail for him, who, it is alleged, was arrested on the original writ; and all this is averred to appear of record. [ * 592 ] * Eight pleas in bar of execution were made by the defendants; on the first, second and sixth of which issues were joined to the country. In one of them the defendants had oyer of the bail bond; which appears to be in the usual form, reciting the arrest of Aiken, and conditioned for his appearance, and abiding the final judgment in the suit. But the bond was executed only by Parker and French, the sureties, and not by Aiken, the principal debtor ; although in the body of it, it purports to have been executed by the three, and a seal was affixed, with a space opposite to it, for Aiken's signature.
    The third and fourth pleas substantially deny the arrest of Aiken, setting forth his absence from the commonwealth, at the time of the pretended service of the writ, and for a long time afterwards.
    The fifth plea denies that there is a record of the defendants’ having become bail, as set forth in the writ; or that there is any record of such obligation as is therein set forth.
    The seventh and eighth pleas allege that after entry of the original action in Court, there being then another action pending in favor of Gilmore fy Aiken against the plaintiff Bean, the parties entered into a rule of court, whereby they submitted the two actions, and all demands between the parties, to the determination of certain referees; and that the sum, for which the judgment was rendered, was the sum reported by said referees as the balance of all demands between the parties; and that this is the same sum for which the execution issued, which was the foundation of the present suit against the defendants.
    To the third and fourth pleas the plaintiff demurs specially, showing for cause, that the defendants are estopped by the bond from denying the arrest of Aiken; that fact being recited in the condition of the bond ; also, that these pleas are double.
    To the fifth plea there is also a demurrer and joinder; alleging the plea to be double, and otherwise defective in form.
    * The replication to the seventh and eighth pleas aver [ * 593 ] substantially, that the sum awarded by the referees, and for which judgment was rendered, was part of the same sum demanded in the suit, on which the defendants became bail; the referees having only deducted from the plaintiff’s claim in that suit, part of his cross demand, which could not have been filed in set-off, or given in evidence on the trial of the action.
    To this replication there is also a demurrer and joinder.
    
      Rand, for the plaintiff.
    The third plea in bar is bad, inasmuch as it amounts to a denial of the return of the officer; which is matter of record in the suit, upon which this process is grounded . The return is stated in the declaration, and admitted in the plea; and oyer is not necessary, and cannot be had of a record . The bail cannot plead any matter, which the principal could not allege in pleading; and, therefore, the return, as to them, is conclusive . This plea is also bad, because it traverses a material fact stated and admitted in the condition of the bail bond , and the bond being set forth on oyer, the estoppel may be relied on upon demurrer, without pleading it.
    
      - The bond set forth appears to be a good bail bond. It is sealed with the seal of the principal, whose name is in the bond, containing a statement that it is sealed with his seal. It must be intended that it was duly executed by him ; and the bail are estopped to deny it. Signing is not essential to a deed; and this bond is not therefore defective, because it wants the signature of the principal  ; and one might seal and deliver for all, with their assent  ; nor is it material that any peculiar seal be used . The bail will not be permitted, even on issue to the country, to give evidence of its not being executed by the principal; these circumstances amounting to an estoppel in evidence . Neither the [ * 594 ] arrest, nor the place of the arrest, *are traversable  ; and bail may be taken before the writ is delivered to the sheriff .
    There is nothing wanting in the bond in this case, as to form or substance, even if it should be admitted that the principal never executed it . Chief Baron Comyns says, “ The principal need not be bound with his bail ”. The sheriff in England may put in bail for the principal against his consent . So in the civil law, one may become a surety for another, without the order of the person, for whom he binds himself . “ Fidejubere pro alio potest quisque, etiamsi promissor ignorat 
      . The bond was voluntary on the part of the sureties, and therefore binding .
    In England, in the case of bail to the sheriff, a bond without a principal has been held to be good  ; and the precedents in modern books of pleading show the law to be so . This is not a bond taken colore officii, nor for ease and favor ; for in the case supposed of no arrest or constraint of the principal, or obligation imposed upon him, the statute of 23 Hen. VI. c. 9, does not apply  ; and as, in this state, the bond is taken originally for the use of the plaintiff, it may well be doubted, whether, in any case, the statute can be reasonably applied here .
    The defendants’ fourth plea in bar is bad for the same reason as the third; that the arrest is not traversable, and need not be alleged in the plaintiff’s writ, and could not be denied by the defendants.
    As to the fifth plea, it tenders an immaterial issue. The bail bond is never, in practice, returned with the writ; and it is not matter of record, nor required to be so; and if it were, the defend ants having had oyer of it, and it being set forth on the record, they cannot now deny that there is such a record. The officer’s return is in the common form, and it is sufficient.
    The seventh and eighth pleas are also bad. The condition of the defendants’ bond is, that the principal shall abide the final judgment in the suit, and not avoid. We *have [ * 595 ] alleged that thp sum claimed in our original writ was adjudged to us in the suit, and that the principal has avoided; and this is not denied, but admitted by the pleas. The bail cannot therefore, for the purpose of avoiding their responsibility, inquire on what grounds that judgment was rendered; whether on a report of referees, or otherwise. They cannot even take advantage of every thing, which the principal might except to . Suppose the judgment erroneous on the face of it; or that the judge admitted improper evidence ; or suppose judgment to have been entered without any pleadings or trial; could the bail take any advantage of circumstances like these ? .
    Here the bond is given in a penalty equal to the ad damnum in the writ, and exceeding the amount recovered. The sureties agree that the principal shall abide any judgment, to be rendered by the Court in that suit, not exceeding that amount. This case then comes within the terms of their engagement. They must answer for the folly or negligence of the principal. If he confess judgment, or suffer default, they are liable . So if he plead a bad plea, or judgment be given erroneously against him on demurrer or on a report of auditors. Why then, when the matter is submitted to referees, shall they be discharged ? No reference is had by the bail to the contract stated in the writ. They look only to the penalty of their bond, or at most to the ad damnum.
    
    It is the constant practice to make amendments. A plaintiff declares on promissory notes, and afterwards files money counts • and often states a demand, as to date and place, entirely different from the claim first made in the writ. This is not thought to effect a discharge of the bail. It does not in England, except in cases where their statutes operate to produce a discharge. Wherein is the case of a submission different ? The bail suffer no harm. They can foresee all these contingencies, and can provide against them by limiting, at what sum they please, the penalty of their bond. [ * 596 ] The engagement is like the injudicio siste of *the civil law . The stipulation is not that the principal shall pay the debt; in which case the amount recovered, and on what account it was recovered, might be very material; but the bail only engage that he shall remain in court, and abide the judgment, and not avoid .
    By the English law, in force when our ancestors emigrated [iSVat 23. Hen. VI. c. 9], the sheriff might take bail for any amount he pleased, and the bail were liable to all actions returnable the same term . Since that period the Stat. 23, Car. II. c. 2, was passed, prohibiting the holding to bail in cases above £40, unless the true cause of action be stated in the process. It enacts, that “the sheriff shall let to bail every person by him arrested on such writ or process; wherein the certainty and true cause of action is not particularly expressed, on security in the sum of £40, and no more, for his appearance.” Under this statute, special bail was taken at the discretion of the judge . By a subsequent statute [4 Anne c. 16, § 20], it was provided, that, “by rule or rules of the same court,” where the action on the bond is brought, “ the court may give such relief to the bail, as is agreeable to justice and reason.” Under this statute the court have their authority, summarily to enter an exoneretwr on the bail-piece, which they so often exercise. By a still later statute [12 Geo. I. c. 29], it is enacted, that in cases above 20s. “ affidavit shall be made and filed of the cause of action, and the sums specified in the affidavit shall be endorsed on the process; ” “and that the officer shall hold to bail for no more.”
    Neither of the forementioned statutes having been adopted in this commonwealth , none of the cases regarding amendments, &e. can fully apply here; because they are all decided on those statutes. The point now in question must therefore be decided on the principles adopted in cases where those statutes do not apply. Now, in England, notwithstanding these statutes, bail to the sheriff are held liable, to the extent of the penalty, to [*597] * answer the real debt of the plaintiff; although the arrest be made for a smaller sum, and the cause of action in the process differ from that stated in the bond . In the case last referred to, the arrest was for £50; bail to the sheriff was given in £100; and the plaintiff recovered £79. Lord Lough-
      
      borough held the bail were liable to the extent of the penalty of the bond, to pay the real debt due  The reason is, that the bail undertake to answer under a penalty that is fixed, and cannot therefore complain of the extent of their liability. So is the civil law. “ In veram quantitatem fidejussor teneatur, nisi pro certa quantitate accessit ” .
    The bail in this state must undertake that the principal shall abide the final judgment of "the Court; and therefore their responsibility is that of bail to the sheriff in England; in which case it is not material that the true cause of action should be stated in the writ. They are here in no better situation than bail in the Common Pleas in England, who are bound by recognizance in a certain sum ; and even since the statutes of Car. II. and Geo. I., before referred to, they are holden to the amount of the penalty of the recognizance. In Calverack & Ux. vs. De Miranda 
      , the action was trespass; damages laid at £500; bail by order of the judge for £140; verdict for £300; and there was a motion to stay proceedings on payment of £140 and costs. The court said, as the damages laid in the writ were £500, there was no fraud on the bail, and that the plaintiff might have execution for the whole penalty. In this case, the Court observed, according to the practice in the King’s Bench alluded to, the bail, being bound without any particular sum, were governed by the ac etiam. And in the case of Calverack vs. Pinhero 
      , which was the case of the other bail or co-surety, Fortescue, J., said, the bail are bound as far as the penalty in each case will go. The same law is laid down in other cases . Here the bail are bound in a penalty; no sum is sworn to; no statute limits the sum, for which bail shall be taken; and the court have * none of the power to do equity, which, [ * 598 ] under the statute of Anne, the English courts possess.
    From the cases in the King’s Bench, an inference may be drawn favorable to the plaintiff’s case. They depend indeed upon the statutes above referred to; but the bail are held to the amount of the ac etiam 
      . If the claim finally recovered be greater than the claim in the ac etiam, judgment is given pro tanto 
      . There are cases in the King’s Bench, where the plaintiff having declared for a different demand from that stated in the ac etiam, the bail have been discharged . But this is because the statute of 13 Car. II. requires that the true cause of action should be stated in the process to hold to bail; and the bail were of course discharged by the statute. The same remark may be made of the cases under the statute of 12 Geo. L, requiring that affidavit be made of the debt or cause of action, and that no bail be taken for more. These excepted cases prove the general rule.
    But where the plaintiff declares on the same and other causes of action, it was never questioned that the bail were liable, if he finally recovered on the demands mentioned in the process. Thus in 2 Show. 335, the defendant was arrested for £200, and bail taken; the plaintiff delivered two declarations, one for £200, another for £500. The bail were held for £200 . And the Court will allow an inquiry, whether the plaintiff recovered on the counts, whereon the principal was arrested, some of the counts being for causes of action not bailable ; and if it so appear, will hold the bail liable .
    On this principle, in all cases of reference, even if the English, statutes were all in force here, the bail would be liable, so far as the plaintiff recovered on demands stated in the writ or process. In the case at bar, the plaintiff recovered on such demands only, and therefore the bail are liable.
    That the English cases in the King’s Bench depend on their statutes, is manifest from the case of Lockwood [ * 599 ] * vs. Hill 
      . There the copias was trespass on the case upon promises, £25. The declaration was in debt. A motion was made to discharge the bail; but the court held, that the variance between the cause of action in the process, and that in the declaration, did not operate to discharge the bail. The bail, therefore, even in England at this day, are held liable, in cases not within the statutes, to the amount of the penalty in their bond or recognizance to pay any sum recovered in the suit; and this is the old law before stated .
    The mere fact, that there has been a submission, cannot surely discharge the bail. The decision was by a tribunal, under the control of the court in which the suit was pending. If the award were against law, or if the referees had been mistaken in matter of fact, it might have been set aside, as well as the verdict of a jury, for which it was substituted. The court have, at all times, a control over the action, and could vacate or alter the rule at discre.ion  ; and the proceedings in case of a reference are not considered as stayed . It is clear, that a submission or reference, by the English law, does not discharge bail . A verdict is taker proforma, because the courts cannot otherwise render judgment or the award. But this is mere form, and is generally taken for the amount of the ad damnum in the process; and the referees or arbitrators stand in the place of a jury; and their award is consid ered, in such case, in all respects, like the verdict of a jury  It has been holden that a reference of a replevin suit does no* discharge the sureties on a replevin bond .
    So also is the civil law, in relation to sureties in courts of law “ Qui alii judicatus sistitur, in eadem causa stare videtur ” 
      . Si reus, post judicatum sold ab eo datum in magistratu sit, nec invitus in jus vocari possit, tamen nisi res boni viri arbitratu defendatur, fidejussores tenentur 
      . *The award of [ * 600 ] the referees is to be considered as a part of the legal proceedings in the suit, in which the principal was arrested; and this Court has held, that a submission, under a rule of court, is a prosecution of a suit, within the authority of an attorney, empow ered to prosecute the particular suit .
    Nor can the sureties in this case object, that it has occasioned delay. In the case of Doe vs. Dawson 
      , the plaintiff declared against the defendant; who obtained an injunction to stay the proceedings, which continued several terms, and was then dissolved; and the bail were held liable. So a postponement for a composition which does not finally take place, is no discharge . Besides the bail here can at all times surrender the principal, and obtain a discharge, if they choose to do it.
    The cases, where the sureties have been discharged on account of time given to the principal, or other similar circumstances, all go on the ground that the sureties have been injured . In the present case, the sureties cannot pretend that they have been injured by the reference. If the matters in controversy had not been submitted, the plaintiff would have recovered nearly double the amount of his actual judgment; and the sureties must have been liable for it.
    If the pleas are good, yet the matter contained in the replication is a complete answer to them. It avers that the plaintiff recovered 
      judgment on the same demands declared on, and on no other or different demands; and that these demands were reduced by the demands of the defendants exhibited to the referees ; as appears by the report of the referees, on which the judgment was rendered. The sureties have received a manifest benefit by the submission, and ought not to be allowed to take exceptions to it.
    
      Cooke, for the defendants.
    
      
      
        Com. Dig. Retorn G.—4 Mass. Rep. 478.
    
    
      
      
        Chitty, 415.
    
    
      
       9 Mass. Rep. 99.—10 Mass. Rep. 313.—11 Mass. Rep. 165.—15 Mass. Rep. 82, 230.
    
    
      
      
        Willes, 9, Shelly vs. Wright.—2 New Rep. 453.
    
    
      
      
        Phillips on Evid. 358.—17 Ves.jun. 454, 457.-4 Taunt. 214.
    
    
      
      
        4D.&-E. 314.
    
    
      
      
        Perk. c. 2, § 134.
    
    
      
       2 Preston’s Abstract, 206.
    
    
      
      
        Imp. Sher. 77, ed. 1817.—Keb. 554.—Sid. 96.—Strange, 444, 643.—Fort. 264.— Com. Dig. Bail, K. 5.—2 Saund. 596, note 3.
    
    
      
      
        7 D.fyE. 375.—Barnes, 81, 83.
    
    
      
       2 B.&rP. 334, 443.—Garth. 121.—12 Mass. Rep. 137.—10 Mass. Rep. 442.-7 Taunt. 28.
    
    
      
      
        Com. Dig. Bail, G. 2.
    
    
      
      
        Peake’s cases, 169.—2 B. P. 35.—2 Strange, 876.—Carth. 121.
    
    
      
      
        Domat. lib. 3, tit. 4, § 1.
    
    
      
      
        Lib. 30. ff. defidejussu.
      
    
    
      
       2 Strange, 744,-2 L. Raym. 1459—1 Burr. 330—2 Marsh. 280.
    
    
      
       8 Co. 99 b.
      
    
    
      
       3 Morg. Vade Mecum, 391.—3 Chilly, 241
    
    
      
       10 Co. 99 b.
      
    
    
      
       2 Mass. Rep. 202.
    
    
      
       2 B.fyP. 47.
      
    
    
      
       2 Mass. Rep. 392.
    
    
      
       5 D.SpE. 277.
    
    
      
      
        Vis. lib. 2, tit. 8.10.—10 Voet. h. t. ad pond.
      
    
    
      
       2 Saund. 60 a. note (3),
    
    
      
      
        Com. Vig. Bail, K.—3 M. 1 Cro. Jac. 286.—1 Mod. 16.—10 Mod. 153, 327.-Tidd, 81, 82.
    
    
      
      
        Bac. Mr. Bail, B. 3.—Boot, 62.—Tidd, 244.
    
    
      
       2 Mass. Rep. 195.
    
    
      
       2 Saund. 60 a. note (3.)—1 H. Black. 76 —Mitchell vs. Gibbons.
      
    
    
      
       1 Taunt. 218.—1 H. Black. 233.-8 D. &■ E. 28.-7 D. &■ E. 370.—Cowp. 71.--2 L. Raym 1564.
    
    
      
      
        Dig. lib 2, tit. 8. 5 4.
    
    
      
       1 Barnes's Notes, 76.
    
    
      
      
        Frac. Reg. 88.
    
    
      
      
        lB.SfP. 205.—1 H. Black. 233.
    
    
      
      
         Strange, 922, Martin vs. Moor.
      
    
    
      
      
        Highmore, 80.
    
    
      
      6 D. 4- E. 364.-7 D. fy E. 80.—8 D. &■ E. 416.—3 Wils. 61.-2B. & P. 358.-H Black. 278.
    
    
      
       See also 2 Show. 183.—5 D. E. 402.
    
    
      
      .(39) 2 Taunt. 107.—7 Taunt. 80.
    
    
      
       1 H. Black. 310.
    
    
      
       fl Keb. 16.
    
    
      
      
        Tidd, 884.—7 East, 608.—3 Taunt. 486.-4 Taunt. 254.—5 Taunt. 452, 628.— 2 D. Sf E. 645.—1 Taunt. 151.
    
    
      
       2 L. Raym. 789.-8 D. fy E. 139.
    
    
      
      
        Tidd, 883, 884, 877,1107.—2 Marsh. Rep. 392.
    
    
      
       1 Taunt. 151.—1 East, 401—3 B. P. 2M.—ICidd on Awards, 214, 743,992.— 6 East, 141.—1 Maulé Selw. 675.—2 Bam. Sf Aid. 106.
    
    
      
       2 Marsh. Rep. 81.—Ibid. 392.
    
    
      
      
        Dig. lib. 2,11,11
    
    
      
      
        Dig. lib. 46, tit. 7, 32.
    
    
      
       16 Mass. Rep. 319.
    
    
      
       3 Mod 274.
    
    
      
       5 Taunt. 614.—1 Marsh. 250.
    
    
      
       1 Holt’s Rep. 403, zr intis —18 Ves. jun. 20.—2 Marsh. 392.
    
   Parker, C. J.,

delivered the opinion of the Court, after stating the substance of the pleadings.

We think the third and fourth pleas cannot be sus[*601 ] tained, because they deny * the return of the officer upon the writ; which is matter of record, and is conclusive between these parties. The arrest could not be proved but by the return of the officer, nor can it be disproved by parole when it appears by the return to have been made. If this return be not true, the defendants’ remedy is by action against the officer or the sheriff, for a false return. So, also, if a bail bond had been given in common and proper form, it would admit, as a fact, the arrest of the principal; and the sureties would not be allowed to deny that fact against their own admission under their seals. It has often been decided that a legal and sufficient return by an officer upon a precept which he had authority to serve, cannot be controverted, except in a suit against the officer himself, or his superior. Fide 4 Mass. Rep. 478; 9 Mass. Rep. 96; 10 Mass. Rep. 313; 11 Mass. Rep. 163.

We think, also, that the fifth plea, which denies that there is any record of the defendants’ becoming bail, or of any bail-bond, is bad, because the becoming bail is not, in truth, with us, a matter of record. It is altogether a matter in pais, and provable before a jury, as other matters of fact are. The practice has always been to traverse the fact of being bail, and to take issue upon it to the country. The mere fact that bail was taken upon the arrest is matter of record, which the officer making such return cannot deny ; but that the present defendants were bail is matter in pais, to be tried by the country, whether they sealed the bond, &c. If it were matter of record in consequence of the return of the officer, even a forged bond could not be resisted.

The mistake upon this subject arises from supposing bail in this commonwealth to be upon the same footing with bail in England; whereas there is not, in fact, much analogy between them. In England it is matter of record when bail above is put in; for it is done by way of recognizance in court, or before some judge or commissioner, in which case it is returned to court. In [ * 602 ] this state it is * taken by the sheriff out of court, and long before any action is entered. It is more like bail to the sheriff in England; which is also matter in pais, and may be traversed ; the bail-bond being assigned by the sheriff to the creditor, at whose suit the party was arrested.

The legislature, by the statute for regulating bail in civil actions, have given a scire facias against bail ; but this form of process does not necessarily constitute the contract of bail a matter of record. It is given for convenience, and does not supersede an action of debt upon the bail-bond; which may, perhaps, yet be ■brought, notwithstanding the legislative provision. Without this statute, a scire facias could not be brought upon a bail-bond; and this shows it not to be matter of record. The long and uniform practice of sheriffs and other officers, in relation to bail-bonds, proves that they have not been considered as matters of record; for they are rarely, if ever, returned into the clerk’s office, but are kept by the officer until the termination of the suit against the principal, and are then handed over to the creditor or his attorney, to be put in suit without ever having gone into the clerk’s office, at least until a scire facias is sued out. This practice sometimes subjects the officer and the creditor to a loss, or to a mutilation of the paper. It may be necessary hereafter to require it to be filed with the writ in the clerk’s office for safe keeping. This would not make it a record ; but it would be for the security of all parties that it should be placed there, that it might be found whenever a writ of scire facias should be demanded ; and, in such case, for the security of the officer, the clerk should be required to certify upon the writ, that the bail-bond was filed .

With respect to the seventh and eighth pleas, we think they furnish a sufficient bar to the action ; and are not avoided by any thing contained in the replications. When one becomes bail for another, he is responsible only for the demand contained in the suit, upon which the principal has been arrested. Another demand cannot be substituted * or added, without de- [ * 603 ] feating the contract of bail. It is immaterial whether the substituted demand be greater or less than the one contained in the writ. The bail has a right to say in hcec fcedera veni, and no other. Now a reference of all demands is, in truth, abandoning the suit altogether, and giving to each party an unlimited right to claim against the other, without regard to the original right of action. Certainly no man ought to become bail for his friend, if he might be thus exposed.

Nor is it any answer to say that the bail has gained by the agreement to refer, as is alleged in the replication, to these pleas; for this will make this contract of bail, which ought to be definite and certain, to depend upon transactions of the parties, in which the bail has no concern subsequent to his entering into the contract; and put him to the inconvenience of proving facts which may be entirely beyond his reach. When he enters into his contract, he pledges himself, on certain contingencies, to pay what may be recovered in the usual course of law, in the action to which his bond refers: he does not agree to abide the judgment of referees upon all other matters subsisting between the principal and his creditor And this has been hitherto the common understanding with respect to the liability of bail; for a reference in such case has always been of the particular action only, with an agreement that the defendant may file in set-off any claims he may have against the creditor. This puts the bail upon a safe footing, and he cannot complain of the result. But where the creditor has liberty to multiply and increase his demands ad libitum, there is no security; and the bail ought not to be left to the difficult inquiry, and this by parole evidence, whether he was in fact prejudiced or not by the proceedings of the referees .

But there is still a point presented by the pleadings, which, what ever had been our opinion upon the others, we all think is fatal to the plaintiff’s action. The instrument by which the de- [ * 604 ] fendants are supposed to have * become bail, has been made a part of the pleadings, having been exhibited on oyer prayed for. And it appears that it was never signed nor sealed by Aiken, who should have been principal; the two defendants being only his sureties, as appears by the tenor of the instrument. Now, we think it essential to a bail-bond that the party arrested should be a principal: it is recited that he is; and the instrument is incomplete and void without his signature. The remedy of the sureties against the principal would wholly fail or be much embarrassed, if such an instrument as this should be held binding. Suppose they wish to arrest the principal in some distant place, or in some other state, what evidence would they carry with them that they were his bail ? There is nothing to estop him from denying the fact, nor any proof that it was true. In a suit against him, they would be unable to prove that he was ever arrested, or had ever given bond, except by the return of the officer; and that would not prove that they became bail, but only that bail was taken. By our statute before cited, the bail are all along considered as sureties; and a principal is recognized in every section.

One case, however, has been cited by the plaintiff’s counsel, from which it would appear that a bail-bond, given to the sheriff in England, might be good, although the debtor was no party to it; and other cases show that a recognizance by sureties is good without any principal. So much of the principles which regulate bail there has grown out of the practice and rules of the courts, that cases respecting it, occurring in those courts, will not always be applicable here, where the subject is regulated by statute. The sheriff is there compellable to take bail, as he is here; but the bond given to him is effectual only to compel an appearance in court; whereas our bail-bond is security for the judgment. The bail, therefore, ought to have complete power over the person of the principal, that they may discharge themselves by surrendering him, before they are fixed; which is not until"judgment against them upon scire facias; * unless the debtor die after [ * 605 ] non est inventus returned upon execution. Now, it is held that where the debtor is not a party to the bond or recognizance of bail, he is not estopped to deny his arrest, or that those who claim the custody of his person were his bail; so that their right to seize him for the purpose of surrendering him would be much impeded.

Further, m the cases cited, it appears, from the tenor of the bond or the recognizance, that it was not intended that the debtor should be a party ; but by the bond, on which the present suit is brought, it appears that the principal was to sign and seal the bond, as well as the sureties; and the condition of the bond is predicated upon that fact. Now, a bond or other instrument, intended to be executed by several, is not good against one alone; and a declaration which should set forth a bond purporting to be made by A as principal, and by B and C as his sureties, would not be supported by producing in evidence a bond made by the sureties only. This bond must be considered as declared upon according to its real tenor; in the same manner as if it had been recited in the declaration in heec verba; and then purporting to be a bond by principal and sureties, and no principal having executed it, it must be taken to be void.

Most of the cases cited to show that the debtor himself need not be bound, are cases of bail above, by recognizance. Indeed, the only one which is not of this sort is merely referred to in the case in Coke, not being reported by itself. [10 Co. 100 b.] After examining the case as there stated, I think it does not appear clearly that the bond to the sheriff was not signed by the debtor, who was, bailed. The question before the court in the principal case was, whether a bail-bond with only one surety would excuse the sheriff. The ease cited was of a bond to the sheriff, in which the defendant only was bound; and the bond was held good to the sheriff Now, it may be that the expression “ that only the defendant was bound,” meant that he was the only surety. [* 606] * But, however that may be, we are satisfied that in this country, and in our courts, a bond purporting to be a bail-bond, and reciting the debtor as the principal, and the others as sureties, is not valid unless it be actually executed by the principal as well as the sureties. We can perceive great danger of fraud, collusion, and surprise, if officers were allowed to take bonds in this way; probably without ever arresting the principal; and the practice has never been such in this commonwealth, as to justify such a procedure. Costs for the defendants 
      
      
        Stat. 1784, c. 10.
     
      
       [See Revised Statutes, ch. 91, sec. 4, 6, by which the bail-bond is required to be returned into Court with the writ, and is made a part of the record, so that a soirs facias may issue thereon, reserving to the parties to it the right to dispute the execution or validity of it.—Ed.]
     
      
       [The argument of the Court does not meet the case. The allegation of the replication was that the plaintiff recovered upon the same demands set forth m his declaration, and not other or different demands ; and that even these demands were reduced by the allowance of a set-off by the referees. See Seely vs. Brown, 14 Pick. 177; and the explanation of the case of Hill vs. Hunnewell (1 Pick. 182) there given.—Ed.]
     