
    Charles Jarvis, (Assignee of the Sheriff of Charleston,) v. Samuel Alexander.
    There being, in this State, no ca. sa. against a female, the return of nulla bona, upon a fi. fa., is sufficient to authorize proceedings against the bail of a female defendant, who has not been surrendered.
    The bail of a female defendant undertake, not only for her appearance, but that she shall abide by and perform the judgment of the Court: but they may discharge themselves by a surrender of her person.
    Bail to the sheriff is not converted, by A. A. of 1809, into bail to the action for all purposes.
    
    Before Butler, J., at Charleston, January, 1889.
    This was an action of debt, upon the bond of the defendant, as bail of Lydia Giberson. - The declaration stated that judgment had been recovered against the defendant in the original action; that, as she was a female, the only enforcible execution that the law allowed, a fi. fa., had been lodged in the sheriff’s office, and that the sheriff had returned thereon nulla hona; that'the said defendant had not surrendered herself, nor had she been surrendered by her bail, and that, in consequence, the liability of the bail was fixed. To this declaration the defendant filed a general demurrer, which was overruled by the Court. -From that decision of the Court, the defendant appealed.
    Mazyck, for the motion,
    
    said that, by A. A. 1809, (p. 30,) the bail to the sheriff was, in fact, converted into bail to the action, (Stevens v. Meeds, 1 Const. E. M. 318; Loiter v. Antonio, 4 M’C. E. 175; Harwood v. Robertson, 2 Hill E. 336,) and that the A. A. 1785, (P. L. 369,) and the whole law on the subject of bail to the sheriff, was rendered obsolete. The appellant’s responsibility, therefore, was that of bail to the action. As such, his engagement was that the plaintiff should be paid, or that the defendant should be forthcoming to the process of the Court; his liability would be fixed when it appeared that she was not within the reach of that process, (Petersdorff on Bail, 289; 1 Attorney’s Pocket Book, 117, 120;) and the way to make this appear was, by non est inventus returned upon a ca. sa. As the A. A. 1824,) p. 23; 6 Stat. So. Ca. 237,) had deprived the plaintiff of that proof, perhaps inferior evidence might have been admitted; but the fact, however proved, was essential, and was not averred in the declaration. The return of nulla bona on a fi.fa., was quite irrelevant as evidence to this purpose. If the bail was liable upon a mere return of nulla bona, then he was a surety at all events for the debt; and under that doctrine, every female defendant would be held to bail, while the difficulty of obtaining it would be infinitely increased. It was suggested that the bail might discharge his liability by a surrender before the return nulla bona: but, if before the return, why not after 1 If he was surety for the debt, no surrender could discharge him; but, if surety for defendant’s forthcoming to the process of the Court, her having no property to satisfy the judgment, was no default to make him liable. The hail was, in fact, discharged as soon as judgment was had against his principal; for after that there was no further process against a feme defendant, and the sheriff could not have detained her if she had been in his. custody. If it was otherwise, how long could he detain her1? till she paid the debt or took the benefit of the insolvent laws % Then nothing was left, of the exemption from the ca. sa., except that the lien of the judgment and. execution was not dissolved, and the law intended to relieve her sex became an instrument of oppression. The power of the bail, then, being co-extensive with that of the sheriff, (2 Com. Dig. 3,) determined, as his did, with the judgment; and it was law, as well as common sense, that the obligation which had become impossible was discharged; as where a principal died, was made a peer, &c. (Petersdorff on Bail, 389, 394;--v. Shirley, Douglas P. 45; Langridge v. Flood, 1 Tidd. 314.) But if he had the power, the surrender would have been an idle ceremony. The doctrine here advocated could alone effect the humane intention of A. A. 1824, and did not disturb the decision in Desprang v. Davis, (3 McC. P. 16,) which might stand independent of it.
    Yeadon, contra,
    
    urged that bail to the sheriff was not turned into bail to the action for all purposes; but only in respect to the rights, privileges and powers of the latter, which were superadded to the obligations of the former, without either being abolished; and this was all that was intended by the general expressions in Stevens v. Meeds, (1 Hill P. 318,) and other cases. That they did exist distinct, was proved by the practice of discharging a prisoner, when Surrendered by bail to the sheriff, on his giving bail to the action, and was settled in GhisweTl v. Flhey, (Rice R. 29,) where the right of bail to the sheriff was fully recognized, to surrender their principal previous to that stage of the case when bail to the action would have been necessary, and, therefore, without ever becoming bail to the action.' The obligation of the one was for his principal’s appearance to the action, which can only be effected by entering bail to the action; (Har-wood v. Robertson, 2 Hill R. 336; 1 Sellon’s Practice, 137;) that of the other was “ to satisfy plaintiff his debt and costs, or to render their principal into his custody, provided judgment should be had against defendant, and defendant himself should fail to do so.” (Sellon, ibid.) To ascertain the true doctrine of this case, the statutes on this subject must be construed together. The A. A. 1785, gives the plaintiff his sci. fa. against the bail to the sheriff, “ if the sheriff shall return upon the execution that the defendant is not to be found, or has no effects whereon to levy the debt and costs;” but under A. A. 1809, “among the rights, privileges and powers of special bail,” the bail to the sheriff acquired that of their liability not being fixed till after a return of non est. upon a ca. sa. This privilege the A. A. 1824 afterwards repealed, in the-case of female defendants, by abolishing the process on which it was founded. But the obligation even of bail to the action, was “ to render the body of their principal to his, the sheriff’s custody,” (Sellon, ut supra and 2 id. 44) — not that she should be forthcoming to a ca. sa. — and the declaration averred the return, nulla bona, and the refvbsal to render, as the best evidence the case admitted of the breach of that obligation. The return of nulla bona did not fix the bail as a surety for the debt; he might yet discharge himself by a timely surrender. The principle of the bail being discharged of his obligation by its impossibility, (1 Sellon, 167,) applied where the impediment was subsequent to the obligation, not where it existed and was known before: but there was no impossibility; for the sheriff not only could, but must have detained the female defendant in his custody. He could not have discharged her unless by virtue of the insolvent laws, or of a judge’s order. A contrary doctrine would involve the absurdity of imprisonment on suspicion of debt, and immediate release upon proof of it. The holding to bail would be a mockery, and the decision in Desprang v. Davis, if not overruled, would be absurdly evaded. But, above all, in Jarvis v. Gibberson, (Dudley B. 223,) the Court had refused the application of the party now defendant, to enter an exonere-tur on this very bail-bond, because “ the bond must still stand as the security of the defendant to answer in some shape the judgment and execution.” Thus the words of the Court had invited the plaintiff to the course which he had adopted, for what execution was there to be answered, if not the fi. fa ?
    
    
      
       This opinion and the succeeding one, are the only two of this term signed by Evans, J. His Honor was absent during the whole term, on circuit duty.
    
    
      
       7 Stat. 309. An.
      
    
    
      
       7 Stat. 215. An.
      
    
   Ouria, per O’Neall, J.

Section 4 of A. A. 1824, (p. 28,) provides “ that no female shall hereafter be liable to be arrested by any writ of capias ad satisfaciendum.” The case of Desprang v. Davis, (3 M’C. R. 16,) decided in Charleston, at the February term succeeding that enactment, ruled that this Act did not exempt a female from arrest under a bail writ. In the case of Jarvis v. Gibberson, (Dudley R. 225,) where the principal in this case was defendant, it was held that an exoneretur could not be entered on her bail bond. Looking to those cases that have given construction to the Act of 1824, we find that, against a female, the writ of ca. sa. is abolished, but still, that she may be arrested and let to bail under a capias ad respondendum. The question before us is, what is the effect of bail thus 'taken % Usually, bail to the sheriff is bail to the action, and his undertaking is, that the defendant shall remain within the reach of the process of satisfaction of the Court. (Saunders v. Hughes, 2 Bailey R. 513.) Against females, no process of satisfaction can be issued, and, hence, that cannot be the meaning of the condition for her appearance, which constitutes the undertaking of bail to the action. If it were otherwise, taking bail would be a mere idle ceremony, and would be as well accomplished by the fictitious bail, John Doe and Richard Roe, as by men of substance like the defendant. But the law requires no such vain and idle ceremony. In the case of a female defendant, may not the undertaking of the bail for her appearance at the return of the writ mean something else than that which is undertaken by bail to the action % I think it does.

Section 3, of A. A. 1819, (p. 60,) declares that bail to the sheriff shall have all the rights, privileges and powers of special bail. The term special bail, as here used, was intended to have the sense attached to it in the county Court Act of 1785, (P. L. 369,) where the person or persons becoming special bail, are declared to be made liable to the judgment and recovery, unless the body of the defendant be rendered in execution. The defendant has all the rights, privileges and powers of special bail, in exoneration of himself: he may surrender his principal, or she may surrender herself. When this is the case, does it not follow — if for the purpose of giving effect to the law, it be necessary — that the liability incurred is co-extensive with the 'rights and powers arising out of it % I think this is the rule of reason, and of common sense, which is another name for the common law. No other construction can be resorted to, which will make the bail of a female have any effect. By the adoption of it, the bail is subjected to no liability which he may not discharge by surrendering his principal; so that there can be no hardship.

See 2 Rich. 555 ; I Strob. 306 ; 4 Rich. 451.

In Harwood v. Robertson, (2 Hill R. 36,) it is said that the Acts of 1785 and 1809, have turned bail to the sheriff into bail to the action, or special bail. This case is to be the first illustration of what is meant by turning bail to the sheriff into special bail. Were it not for the Act of 1785-, I should hesitate long in saying that bail to the sheriff ever could be regarded as special bail; but coupling the Acts of 1785 and 1824 together, I think we may fairly say that the bail of a female undertakes for her appearance, and that she shall abide by and perform the judgment of the Court. Section 10 of the A. A. 1785, protects the bail from, suit until judgment and execution against the defendant and a return of nulla bona, when these things are done. It is plain that the defendant has not abided by and performed the judgment by paying it. The motion to reverse the decision of the Court below is dismissed.

Bichardson, Evans, and Earle, JJ., concurred. 
      
       7 Stat. 215. See 2 N. & McC. 570. An.
      
     