
    Henry W. Brown vs. William Dillahunty, et al.
    Where the condition of a bond is to do a thing which has been'rendered impossible, or illegal, the obligor is discharged.
    Where, by act of legislature, of 1822, (How. & Hutch. 579,) authorizing arrests for debt, it was provided that the bail should have the liberty, at any time before the return of the first scire facias, or before final judgment, of surrendering up his principal in his discharge ; and the statute of 1839 prohibited the arrest or imprisonment of any defendant on either mesne or final process ; held, that the (obligors in. a bail bond, executed before the act of 1839, but the condition of which had not been forfeited until after, were discharged from their obligation.
    Where the right of the bail of a defendant, taken under a ca. sa. to surrender his principal in discharge of his liability, was taken away by statute; held, that thereby the right to proceed further against the bail was also taken away.
    A bail who is deprived by act of legislature of his previously existing right to deliver up his principal in discharge of his recognizance, cannot afterwards be held liable, on that recognizance.
    In error, from the circuit court of Yazoo county.
    The record presents the following case: At the April term, 1838, of the circuit court, the plaintiffs in the court below brought suit against John S. Sandes and David Sandes, partners, &c., in assumpsit, on the following note, namely:
    Benton, January 2, 1838.
    One day after date, we promise to pay Dillahunty & Davis, or order, two hundred and twenty-three dollars and twenty-eight cents, for value received. J. S. &. D. Sandes.
    The writ issued against both defendants, on the 31st March, 1838, the time the declaration was filed. The writ required by the indorsement bail of the defendants is in these words :
    Bail is required in the sum sworn to due, $223 28, predicated on the following affidavit, namely :
    
      State of Mississippi, ~Yazoo County.
    
    Personally came before me, an acting justice of the peace for said county, William Dillahunty, of the firm composed of himself and Daniel W. Davis, and, being sworn, made oath and deposed, that John S. Sandes and David Sandes are indebted to said Dillahunty & Davis, in the sum of two hundred and twenty-three dollars and twenty-eight cents, and, that he is apprehensive that the said John S. Sandes is about to leave this county, and thereby prevent the legal recovery of his debt.
    William Dillahunty.
    Sworn to, and subscribed before me, this 3'lst March, A. D. 1838. R. M. Corwine, J. P.
    
    Upon which said writ of capias ad respondendum, the sheriff of Yazoo county, by his deputy, J. S. Young, made the following return, namely:
    “ Received, 31st March, 1838. Executed as to J. S. Sandes-, 31st of March, the other defendant not found in my county.
    “ J. S. Youno, D. 8.
    
    
      “ For P. Buford, Sheriff.\n
    
    BOND.
    
      State of Mississippi, Yazoo County.
    
    Know all men by these presents, that we, John S. Sandes and Henry W. Brown, are held and firmly bound unto Parham Buford, sheriff of said county and state, in the just and full sum of four hundred and forty-six dollars and sixty-six cents, lawful money, of the United States, for which payment, well and truly to be made, we bind our and each of ourselves, our and each of our heirs, executors, administrators and assigns, jointly and severally, firmly, by these presents, sealed with our seals, and. signed with our hands, this 2d day of April, 1838.
    The condition of the above obligation is such, that whereas William Dillahunty and Daniel W. Davis, have sued out a writ of capias ad respondendum against the said John S. Sandes and David Sandes, returnable to the circuit court of Yazoo county, to be holden on the fifth Monday of April instant, A. D. 1838, to the damage of said Dillahunty and Davis, as alleged, of five hundred dollars. Now, if the said John S. Sandes shall well and truly, satisfy the judgment of the said court, to be rendered on the premises, or in default thereof shall render his body in execution, or in case he fail in the foregoing, if the said Henry W. Brown shall do it for him, then this obligation to be void, otherwise to remain in full force.
    John S. Sandes. (Seal.)
    Henry W. Brown. (Seal.)
    Upon which is made the following assignment:
    “ I, Parham Buford, sheriff of the county of Yazoo, do hereby assign the within obligation and condition, to William Dillahunty and Daniel W. Davis, their executors and administrators, to be sued for according to the statute in such case made and provided. In witness whereof, I have hereunto set my hand and seal, this 2d day of April, in the year of our Lord, 1838. J; S. Young, D. S.
    
    “ For Parham Buford, Sheriff”
    
    Upon the declaration filed, the court below gave the following judgment:
    “ This day came the plaintiffs, by their attorneys, and discontinued as to David Sandes, and took judgment by default against John S. Sandes, for two hundred and thirty dollars and forty-seven cents, for their damages. Wherefore,” &c.
    Afterwards, on the 14th day of September, 1838, the plaintiffs sued out a writ Ji. fa. on the judgment aforesaid, commanding the sum of two hundred and thirty dollars and twenty-two cents to be made in the usual form. Upon which writ offi. fa. was made the following return:
    “ Received, 15th September, 1838. The within named defendant has neither goods, chattels, lands, or tenements, that I can find in my county, that I can make the within named sum of money, or any part thereof.
    “Parham Buford, Sheriff.
    
    “October 15, 1838. By C. O. McRee, D. S”
    
    
      Afterwards, on 17th day of January, A. D. 1839, the plaintiffs sued out a writ of capias ad satisfaciendum,, in the usual form, for the sum of two hundred and thirty dollars and seventy-two cents, which they say they recovered, with interest, &c. Upon which writ the sheriff of Yazoo county made the following return:
    “ Received January 17, 1839. The within named defendant not found in my county.
    “ P. Buford, Sheriff.
    
    “ April 27th, 1839. -By Thomas Hall, D. S.”
    
    On the 23d day of May, 1839, the said Dillahunty and Davis sued out of the clerk’s office of Yazoo county, a writ of scire facias, directed to the sheriff of Yazoo county. Amongst other things, it states the issuance of the capias ad respondendum, against John S. Sandes and David Sandes, dated the 31st day of March, 1838, describing the writ, substantially.
    That on the 31st of March, 1838, the said sheriff executed said writ on the body of said John S. Sandes, by taking his body into custody, which was released by his entering into bond in the sum of four hundred and forty-six dollars and sixty-six cents, with Henry W. Brown as security, conditioned that the said Sandes should pay the judgment to be rendered, or render his body in execution, or that Brown would do it for him.
    That afterwards, to wit, at April term of said court, 1838, the said Dillahunty and Davis recovered judgment in that behalf against the said John S. Sands, for the sum of two hundred and thirty dollars and seventy-two cents, and costs of suit, &c.
    And next states that they obtained “ a writ of capias ad satisfaciendum against the body of said John S. Sands, for the satisfaction of said judgment, returnable to the court aforesaid, to wit, at the May term thereof, A. D. 1839, directed to the sheriff of Yazoo county.”
    
      “ Upon which said writ of capias ad, satisfaciendum, the said sheriff made his return, That the said John S. Sandes could not be found in his county.”
    
      The scire facias then commands the sheriff, by good and lawful men, to give notice to the said Henry W. Brown, to be and appear at the circuit court for said county, at the November term thereof, to be held the third Monday of November next, after the date of said sci. fa. “ to show cause, if any he can, why the said Dillahunty and Davis ought not to have execution against him for the satisfaction and payment of the bond aforesaid, according to its tenor and effect, and further to do and receive,” &c.
    This writ of sci. fa. issued the 23d day of May, 1839.
    Upon which said writ of sci. fa. the sheriff of said county made the following return :
    “ Received on 23d of May, 1839. Executed, July 23d, 1839, on Henry W. Brown, in the presence of G. Fisher.
    “P. Buford, Sheriff.
    
    
      “By Thomas Hall, D. S.”
    The defendant Brown filed the following pleas to the scire facias:
    
    
      1. “ That the said capias ad satisfaciendum in said scire facias mentioned before the return thereof, was rendered void by the operation of the law and the return thereon, inoperative and of no effect, and that the said Henry W. Brown could not lawfully apprehend and surrender the said Sandes, as by the condition of the said supposed bail bond he was required in the discharge thereof.”
    2. “ That there is no capias ad respondendum against the said Sandes returned non est inventus by the sheriff of said county : of this he puts himself upon the country.”
    3. “ That before the return of the said capias ad satisfaciendum, on said scire facias mentioned, the same was rendered void and inoperative by virtue of the statute in such case made and provided and the said return thereon of no force or effect, prays judgment, &c.”
    4. “ That by the laws of the land he could not lawfully apprehend and surrender the said John S. Sandes, in execution, as by the condition of said bond as in said scire facias mentioned, he is supposed to be required, nor would it be of any benefit or advantage to the said plaintiffs so to apprehend and surrender the said Sandes, and this he is ready to verify.”
    Other pleas were filed in the cause, but they are not noticed here, because the judgment of the court did not turn upon them.
    To these pleas demurrers were filed by the plaintiffs below, which were sustained by the court there, and judgment thereon, upon failure further to answer, rendered final, against the defendant below, and he accordingly sued out his writ of error.
    The principal error assigned and relied on, was the error of the court, in giving the judgment upon the pleadings against the defendant below.
    
      W. JET. Brown, in proper person.
    The security, in a special bail bond, is at liberty, at any time before final judgment against him, to surrender his principal in his discharge. See How. & Hutch. 579, sec. 13.
    The acts of the legislature of 1839, (see How. & Hutch. 656, 657, 658,) and the Acts of 1840, (p. 132,) abolishing imprisonment for debt, have put it out of the power of the surety, in this case, to surrender his principal in his discharge; and the law operating upon the remedy, takes immediate effect upon and operates upon all suits, as well those pending, as those subsequently commenced. See Gray, Sherwood Co. v. Monroe, et al, 1 McLean’s R. 528, a decision precisely in point, and upon a similar statute to ours.
    The bail bond is a part of the remedy, and if its condition to surrender the (principal) defendant is afterwards made unlawful, the bail, on principle and authority, must be discharged. See 4 East R. 599. 5 Binney R. 332. 4 Johns. R. 407.
    Where the principal would be entitled to an immediate and unconditional discharge, if he were surrendered, the bail is entitled to relief by entering an exoneretur, without any surrender. Beers, et al. v. Haughton, 9 Peters R. 358. 3 Dallas. 478. 3 Burr. 339. 1 Sell. Pr. 180, 183.
    
      Why surrender the principal, when he cannot be held in confinement?
    The law can never require an act to be done so useless and absurd. 14 East, 599. 4 Johns. R. 407. 5 Binney R. 332. 18 Johns. R. 335. 9 Serg. & Rawle R. 24. See also l McLean R. 226.
    The return of the sheriff on, the capias ad satisfaciendum of not found, was inoperative, and of no effect; and, therefore, laid no foundation for the issuance of the scire facias against the bail, because the said act of 1839 passed and took effect before the return of the capias ad satisfaciendum not found, and upon the passage of the act the said writ, in the hands of the sheriff, became inoperative and void, and the sheriff could not have executed it without committing a trespass, or being subject to false imprisonment, and his return upon it of not found had no effect; the writ, of course, must be legally returned not found, before scire facias can issue. See How. & Hutch. 579, sec. 13.
    There was no order of a court or judge, authorizing the capias ad satisfaciendum to issue; and, therefore, there was nothing to uphold the said writ, or authorize its execution; and the above fact sufficiently appears by the seventh plea, which was demurred to and sustained.
    For the foregoing reasons, also, the court erred in admitting the bail bond and capias ad satisfaciendum, and the return thereon, to be read in evidence to the jury, on the issues of fact.
    
      Mitchell, on the same side.
    The capias ad satisfaciendum was abolished by the act of the legislature of 1839, (Pamphlet Act, 67,) which declares “ no person shall be arrested or imprisoned on any mesne or final suit or process issuing out of any court of law or equity in this state,” <fcc., unless in the cases excepted in the statute, and this is not one of the excepted cases.
    This statute operates upon the remedy, and not upon the right. It is a mere regulation of process, and takes away the plaintiff’s power barbarously to imprison the defendant, but has no influence on the contract. And therefore it operates as well upon cases that are in fieri, as well as when the judgment has been rendered, and would discharge a prisoner out of custody of the officer, or release him from prison, as much as to prevent him from being taken in upon original or mesne process. The act was intended to prevent an actual arrest of the person of the defendant, unless in the excepted cases, and must be construed in that manner, and to that effect, or the obvious intention of the legislature will be defeated.
    This statute is a remedial statute, and must be construed liberally ; and therefore the court below erred upon this question, under the issues both of law and of fact.
    That it would have been false imprisonment in the sheriff, to have.arrested the defendant under the capias ad satisfaciendum, and also in the defendant, Brown, to have taken him, to make a surrender of his body in discharge of his bail bond. Nor could it have been, in either case, of any advantage to the plaintiff, as the said defendant might discharge himself out of custody by motion. 6 Peters R. 358. 3 Dallas, 478. 3 Burr. 339. 1 Sell. Pr. 180, 183. Cole v. Henson, 6 T. R. 234.
    The demurrer to the seventh plea admits, that the capias ad satisfaciendum was not ordered by any court whilst in session, or any judge thereof in vacation, to be issued against the judgment debtor, the said Sandes. That the' said defendant was not liable to arrest, and put it out of the power of the said Henry W. Brown to surrender said Sandes in discharge of himself, for the law had already discharged him. See Acts of 1834, How. & Hutch. 656, 657, 658, and Pamph. Acts of 1840. 1 McLean R. 528.
    But the judgment upon this scire facias is a nullity, not mentioning any sum certain, for which execution might go against the said Henry W. Brown. It is essential to the validity of a judgment, that it be rendered for a sum certain. 1 Misso. R. 182. 1 Wils. R. 98.
    
      TF. 6r. Thompson, for defendants in error.
    That the judgment and scire facias in this cause are of the proper form, see Tidd’s Prac. (App.) 297, 298.
    That the pleas in this cause are informal, and ought to be overruled upon demurrer, see the foregoing reference, and also 10 Mod. 112.
    In relation to the third plea, that bail cannot plead any matter in answer to a scire facias, which might have been well pleaded tá) the original actions, see 6 Mod. 308; 1 Wilson, 238; 3 Term R. 685.
    The only remaining objection or assignment of error that needs to be considered, is, that of the judge below permitting the capias ad satisfaciendum and the return thereon by the sheriff to be read to the jury on the trial of this cause, on the ground, as it is argued by the counsel for the plaintiff in error, that the capias ad satisfaciendum was made nugatory by the act of the legislature, abolishing imprisonment for debt, and passed between the times of the issuing and the return of the capias ad satisfaciendum. In reply to this objection, it is urged that the act of the legislature is inapplicable to the case at bar, for several valid reasons. The engagement by the plaintiff in error in the bail bond, upon which this cause is based, was strictly a contract with the plaintiffs below, even when submitted to the most rigid interpretation and construction of the law. It was founded upon a sufficient legal consideration, viz., the plaintiff’s parting with a security they had for the payment of the debt due from the principal of the bail by holding possession of his body. The notion will not be tolerated, that the law would so far sport with itself, as to confer, in one instance, a privilege, a benefit, and a right; and to determine, in another instance, that the same privilege, benefit and right was so entirely nugatory, as to be insufficient to support a consideration for a contract, and especially when the very contract was induced and provided for by the law itself. The contract was completed when the bond was executed by the bail, and accepted by the sheriff on behalf of the plaintiffs. The fact of the conditions in the bond lying in the alternative, could only affect the mode of executing the contract in future, but could have no bearing on the validity and completion of the contract. The statute cannot, therefore, be applied to this cause, in violation of the obligation of a contract.
    Again, the courts will never give, by implication, the force of a retrospective operation to an act of the legislature. Fletcher v. Peck, 6 Cranch, 87; Golden v. Prince, 3 Wash. C. C. Rep. 313; Calder, et ux. v. Bull, et ux., 3 Dallas, 386.
    
      George S. Yerger, for plaintiffs in error, in reply.
    The only question is, whether special bail, entered into before the passage of the law abolishing imprisonment for debt, are liable to be proceeded against, after the passage of the law, prohibiting the issuing of a ca. sa.
    
    The question is settled that he cannot; imprisonment for debt is a part of the remedy only, which the legislature may repeal at pleasure.
    The question is however settled in the case of Mason v. Haile, 12 Wheaton’s Reports; and the cases cited from McLean’s Reports in Mr. Brown’s brief.
   Mr. Justice Trotter

delivered the opinion of the court.

The defendants in error brought a suit in the court below, on a promissory note against. J. S. & D. Sandes, and filed an affidavit according to the provisions of the act of 1824, to hold the defendants to bail, and bail was accordingly required for the sum sworn to. The Messrs. Sandes entered into a bail bond with the plaintiff in error, Henry W. Brown, as surety. Judgment was rendered against J. Sandes, at the April term; 1838, of the court below, on which an execution of fieri facias was issued, and returned nulla bona. A ca. sa. was then issued, which was returned non est. A scire facias was then sued out against the plaintiff in error, as special bail, which was duly served. Brown filed several pleas in bar of the action against him, and, amongst others, the following in substance, that after the rendition of the judgment against his principal, and before the return of the ca. sa., he could not, by the laws of the land¿ apprehend and surrender the said Sandes in custody or execution, as by the condition of his bond he is required to do. Issue was taken on this and the other pleas, which embrace the same defence, and a verdict was found for the plaintiffs. Several exceptions were taken at the trial, which raised the question whether the defence presented by the pleas is valid, and that is the question for the consideration of this court.

The act of 1839 provides, that “no person shall be arrested or imprisoned on any mesne or final suit or process issuing out of any court of law or equity .in this state, in any suit, action or proceeding instituted for the recovery of any debt on any contract, promise or agreement, or for the recovery of damages in any action of trespass, or on any judgment or decree founded on any such contract, promise or agreement, or damages, for the non-performance thereof, or on any judgment in any action of trespass, or for consequential damages, except in cases hereinafter specified.” The exceptions, which are various, are then enumerated, but as the present case does not fall within any one of them, it is unnecessary to mention them. The act of 1822, (How. & Hutch. Dig. 579, sec. 13,) provides, that the bail shall have the liberty at any time before the return of the first scire facias against him, returned, scire feci, or of the second returned nihil, or at any time before final judgment obtained against him, to surrender the principal, &c. This right to surrender his principal by the bail, in discharge of himself, has been taken away from the plaintiff in error, as it is insisted by the act of 1839, first cited, and hence he maintains that he is entitled to an exoneretur. It is a general principle, that when the condition of a bond is to do a thing which has been rendered impossible or illegal, the obligor is discharged. This is consonant to reason and justice. The condition of the bond, in the case of bail, is, that the bail shall render his body to prison in execution for the debt if the principal do not appear, &c. But if this undertaking is rendered impossible by the act of God, or is forbidden by the act of the law, it is clear that in neither case can he be held bound. Thus if the principal die, or if he should be imprisoned, so as to take him out of the power of his bail, the latter is of course entitled to his discharge. Soflin v. Fowler, 18 Johns. R. 335. So if the principal has obtained a certificate of discharge as a bankrupt. Mannin v. Patridge, 14 East, 599. There is no difference in the principle of these cases from that of the one at bar. The act of 1839 rendered it unlawful for the plaintiff in the execution to arrest the defendant, and thus, as a matter of course, placed the bail on the same footing. The effect, then, of the act of the legislature was to place his principal beyond the control or power of his bail in this case. It is true that the principal never was discharged, but it is equally evident that if he had been arrested, he might have claimed an immediate discharge. It would therefore be absurd to require so useless an act. In law the principal is discharged. The case of Beers and others v. Haughton, 1 McLean’s C. C. Rep. 226, is directly in point to the case before the court, and is of the very highest authority, as it has since become the decision of the supreme court of the United States, 9 Peters, 329. In that case .an action of debt was brought upon the recognizance of bail, and the defendant, amongst other pleas, set up the discharge of the principal debtor-under the insolvent laws of Ohio. The law of that state, under which the question arose, was in substance the same as the act of 1839 of this state. The principal debtors in that case were not discharged until after there had been a judgment and the return of a ca. sa. non esi. And it was urged, in answer to the defence, that, as the plaintiff’s rights were fixed, no mode of discharge, subsequent to that could affect the creditor. But the court say, if the defendants to the original judgment were not liable to be imprisoned on such judgment, it would be worse than solemn mockery to require them to be surrendered. Why require the surrender when they cannot be held in confinement J The law can never require so absurd an act. This is deemed a full answer to the argument on similar grounds in the present ease; and, besides, our statute expressly gives the bail the right to surrender his principal in his discharge, at any time before final judgment. But it is insisted further, that the rights of the plaintiffs became vested under the law as it stood at the time of the execution of the bail bond in this case, and could not therefore be impaired by a subsequent law. This question is made and settled in the case of Beers v. Haughton, already noticed. It is there observed, that the mere imprisonment of a debtor, as a means of enforcing payment, belongs to the remedy and does not reach the contract. And the supreme court of the United States have several times decided that a state insolvent law, which exonerates the debtor from imprisonment, does not impair the obligation of the contract. The case of Beers v. Haughton, decides this question. 9 Pet. S. C. Rep. 329; also, Mason v. Haile, 12 Wheat. R. The case of Gray, et al. v. Munroe, et al., 1 McLean’s C. C. Rep. 528, is also a direct authority for the view here taken.

The judgment must be reversed, arid a venire de novo awarded.  