
    RYAN v. WATSON, Sheriff, &c.
    A surrender of the principal debtor, to the officer holding the writ of execution agahjA him, is a discharge of the bail-bond.
    A special demurrer to a plea because it is double and argumentative, is fatally defective unless it state particularly wherein these defects consist,
    This was an action of the case against the late sheriff of this county for the neglect of one of his deputies in not delivering over to the plaintiff, upon demand, the bail-bond by him taken in a suit in favour of the present plaintiff, — and in not returning the bond to the clerk’s office within a year from the rendition of the final judgment,
    There were divers pleas in bar of the action; — the substance of which was — that within a year from the rendition of the judgment, and before the bail-bond was demanded, the original debtor — 1—surrendered himself, — 2—was surrendered by his bail — to the defendant, who had in his hands the writ of execution which was issued on the judgment; and that the defendant was ready to have committed him; but was directed by the creditor’s attorney not to commit him, but to suffer him to, depart.
    To these pleas the plaintiff demurred, assigning for cause— 1st, that the defendant had not alleged that the debtor was ever taken in execution in discharge of his bail, — 2d, nor that his bail had him in custody, ready to be delivered up, at all times within a year from the rendition of final judgment, — nor that he was surrendered in open Court before judgment; — and 3d, that the pleas were “ double, argumentative, uncertain,” &c.
    Wilson, in support of the demurrer.
    The sheriff is not discharged by any thing set forth in the pleas, unless the same matter would be a good defence in an action against the bail. But a surrender of the principal to the sheriff is not sufficient to discharge the bail, unless the debtor be taken in execution. Walker v, Haskell, 11 Mass. 3 81. Stevens v. Bigelow, 12 Mass. 434. The obligation on the bail that the debtor shall be found at all times within the year, results from a consideration of the statute and the bond, taken together; for the whole subject be-. ing regulated by the statute,- its provisions must be regarded as forming a part of the contract of bail in all cases; The plea therefore is bad, unless it shew that at all times within the year1 the debtor might be found and arrested. The creditor has á right to his lien on the body during that period, that he may choose his own time for making the arrestj with reference to the greatest probability of the debtor’s redeeming himself by payment of the debt; — and if at any time within the year he is not to be found, the bond is forfeit. That may have been the propitious moment to secure the debt by an arrest. Ctesar v. Bradford, 13 Masst 169. Simmons V; Bradford, 15 Mass. 82. 4 Bac. Abr. 464.
    
      Crosby, for defendant.
    The bail bond became á nullity by the surrender of the debtor. The condition was that he should abide the final judgment, and should not avoid. This he has performed, by surrendering himself to the sheriff, who had the' writ of execution against him. It was éñough if he was ready to be taken ; for this was giving to the creditor the whole benefit of the pledge. Champion v. Noyes, 2 Mass. 481. The provisions of the statute for a surrender in open Court after scire facias brought, are merely for the further relief of the bail; but do not affect the principle that a surrender in pais is a discharge at common law. 3 Bl. Com. 290. Rice v. Carnes, 8 Mass. 490„-
   Mellen C. J;

delivered the opinion of the Court as follows :

It seems to have been conceded in argument, that if the facts in this case, would furnish a good defence in a suit against the bail, they will be a good bar to this action; because, if the bail were in law completely discharged, before the bail bond was even demanded of Waters, then,- as it was a dead letter, it was of no value and could be of no use to the plaintiff; and therefore its non-delivery could not be any possible injury to' him. In the case of Champion v. Noyes, 2 Mass. 481. — a leading case on the subject of bail — Parsons, C. J. says, — “After the “ writ is returned, and before final judgment, the bail may surrender the principal to.the court in which the suit is pending, “ and be discharged.” By the provisions of our statute respecting bail 1821, ch. 62. the bail at any time before judgment is em> tered against them on the scire facias may surrender the principal in Court, paying the costs of the scire facias. In the casé above cited the Chief Justice further states, — “ If after issuing “ the execution, arid before the return, the bail surrender the “ principal to the sheriff holding the executionj the bond is saved “ at law, and the sheriff is obliged to commit him in execution.” In Rice v. Carnes, 8 Mass. 490. the Court in delivering their opinion say, “ If execution is sued out, the bail may surrender the “principal to the officer having charge of it; or he may wait the return of the scire facias, and then make the surrender in “ Court.” In both the foregoing cases, the Court speak of the three several modes of discharge as equally effectual. The case of Walker v. Haskell, 11 Mass. 181. has been cited and relied on by the plaintiff’s counsel as opposing the principles of Champion v. Noyes and Rice v. Carnes. We have not been able to draw the samé conclusions from it which the counsel has drawn. The only point settled is, that the creditor’s assurance to the officer holding his execution against his debtor, that he would take no advantage of him,- if he would do the best he could, was a good defence to' an action brought by the credit- or against the officer for not arresting the debtor. There certainly is some obscurity in the case as it stands ; for though it appears that the bail had surrendered the principal to Walker the officer holding the execution against Glidden, yet the Chief Justice, in reasoning upon the facts, seems to proceed on the idea that the bail continued liable. It may perhaps be explained by the circumstance, that though the fact of the surrender to Walker was contained, among a vast many others, in the bill of except tions, vet the exceptions were taken to certain directions of the Judge to the jury, not one of which had any relation to the surrender or the legal effect of it; and, of course that subject was noL judicially brought before the Court. The only question to which their attention seems to have been directed was, whether the plaintiff could charge the officer with official neglect, and recover damages against him, after the liberal discretion he had allowed him and the assurance he had given him ; and these facts would have been equally important to Walker in such an action, whether the bail had been discharged or not. At any ■ rate, we do not consider this last case as weakening the author-sty of the two former; and accordingly are satisfied that thd facts stated in the pleas in bar, if correctly pleaded, furnish a good defence. As to the causes of demurrer, we would observe, that the view we have taken of this case, shews the first cause lobe of iso importance. The second seems to be of the same character, if truly assigned ; of which there is much cpieslion, because the second plea states that the bail of the original debtor delivered up and surrendered him to the said Watson ; which averment certainly contains an affirmation of his being in the custody of the bail at the time of so delivering him up ; and as we are of opinion that a surrender of the principal to the shcr* iff holding the execution is a discharge of the bail, he need not be ready at ail times after, within the year to surrender him-. The third cause is not well assigned. The first and second pleas corf ess the demand of the bail bond as alleged (and this and the non-delivery of it constituted the gist of the plaintiff’s ac* lion) and then avoids the demand made upon him by disclosing* , certain new facts anterior to such demand and refusal. The special demurrer is also fatally defective in not .pointing out minutely wherein the pleas are double and argumentative, if they aro so. On the whole we arc satisfied that the action cannot bd maintained.

Vices in bar adjudged sufficients  