
    Robert K. Enos v. John Aylesworth.
    Where, in the indorsement upon a writ of capias ad respondendum sued out in an action of debt brought on the record of a judgment, the judgment is slated to be $1,200 damages and $80 costs, “ amount sworn to be due $1,280,” etc.; whereas the judgment was for $1,236.94 damages, and $43.06 costs, — damages and costs $1,280 — it is no defense to an action brought on the recognizance of special bail entered in the original action, that after the recognizance was entered into, the court, under the statute of amendment of March 12, 1845, permitted the plaintiff to amend the indorsement on the writ, as to the amount of the judgment for damages and costs, so as to correspond with the fact and the declaration ; the amendment not changing the cause of action, but only its description. Nor is it a defense to such action on the recognizance that it does not appear to have been entered into upon the first or second day of the appearance term.
    In Error to the District Court of Wayne county.
    The record shows the following state of facts:
    On the 15th day of December, 1852, the plaintiff caused one Aaron Lytle to be arrested upon a writ of capias ad respondendum sued out of the court of common pleas of Wayne county.
    The plaintiff’s affidavit, upon which the capias issued, stated that Lytle was indebted to him “ in the sum of twelve hundred and eighty dollars upon a certain judgment rendered in favor of deponent and against said Aaron Lytle, by the circuit court of the county of Porter, in the State of Indiana, at the September term thereof, A. D. 1852,” etc.
    The writ was indorsed: “ Debt $1280, damages $1000. Suit brought on a certain judgment of the 'circuit court of the county of Porter, and State of Indiana, rendered by said circuit court at the September term thereof, 1852, in favor of said Robert Enos, and against said Aaron Lytle, for tke sum of $1200 damages, and $80 costs of suit; amount sworn to as due $1280. Hold to bail in tke sum of $2400.”
    At tke Marck term, 1853, of said court of common pleas of "Wayne county, tke writ was returned by tke skeriff indorsed: “ December 15, 1852. I kave taken tke witkin named Aaron Lytle, and ke is now in custody. Jokn Becktel, skeriff W. C.”
    Tke skeriff, also, on tke first day of said term of tke common pleas, returned, witk tke writ, a bond, a copy of wkick is in tke words and figures following:
    “ Know all men by these presents, that we, Aaron Lytle and John Aylesworth, are held and firmly bound unto John Bechtel, sheriff of the county of Wayne, in the State of Ohio, in the sum of twenty-four hundred dollars, to be paid to the said sheriff, his executors, administrators or assigns, for which payment well and truly to be made, we do hereby jointly and severally bind ourselves, our heirs, executors and administrators. Sealed with our seals, and dated this 15th day of December, A. D. 1852. The condition of the above obligation is such that if the above bound Aaron Lytle do appear before the court of common pleas of the county of Wayne, State of Ohio, at the court house in said county, on the first day of the next term, or on the succeeding day, to answer unto Robert K. Enos in a plea of debt — debt $1280, damages $1000 — then this obligation to be void; otherwise in full force and virtue in law.
    “AARON LYTLE, [l. s.]
    “JOHN AYLESWORTH, [l. s.]”
    .Anri afterward, during tke same term of tke court, a journal entry was made in tke cause, in tke words and figures following:
    “ This day personally appeared in open court, Aaron Lytle and John Aylesworth, and severally acknowledged themselves to owe unto the said R. K. Enos the sum of ticenty-fmr hundred dollars, to be levied on their several goods and chattels, lands, tenements and estates, upon condition that if the defendant, Aaron Lytle, shall be condemned in this action, at the suit of R. K. Enos, the plaintiff, he shall pay the costs and condemnation of the court, or be rendered, or render himself into the custody of the sheriff of said county for the same; or, in case of failure, that the said John Aylesworth will pay the costs and condemnation for him.” And cause continued
    In tke declaration, tke cause of action was described differently from tke indorsement on tke writ, in tkis, tkat tke declaration describes tke judgment as kaving been rendered “ for the sum of twelve hundred and thirty-six dollars and ninety-four cents damages, besides the costs and charges, * * * * * which * * * amount to a large sum, to wit, twelve hundred and eighty dollars.”
    The defendant pleaded the variance, in abatement. The plaintiff filed a motion to strike the plea from the files; but at the September term this motion was overruled by the court, and the plea was sustained, and leave given the plaintiff to amend his writ, so as to make the indorsement of the description of the judgment sued upon conform to the declaration; and the amendment was so made.
    At the April term, 1854, the case being at issue, was submitted to the court, and a judgment rendered in favor of the plaintiff' against Lytle for the sum of $1243.87 debt, and $117.33 damages, and costs of suit.
    On the 19th day of July, 1854, a capias ad satisfaciendum was issued upon said judgment to the sheriff'of the county, and the same was by him duly returned, as follows: “ The within named Aaron Lytle is not found in my county. July 24, 1854. Jno. Bechtel, sheriff W.C. 0.”
    Thereupon the plaintiff commenced a suit, at the December term of said court of common pleas, against the defendant, upon his recognizance of special bail.
    The petition sets forth the recognizance, the judgment, the issuing of the capias ad satisfaciendum, and said return of the sheriff’, and seeks to recover the amount of the judgment and interest.
    The defendant, in his answer, insists that said recognizance is invalid—
    1st. For that it does not appear to have been entered into on the first or second day of the term.
    2d. That the same, if valid when entered into, ceased to be so, upon the amendment of the writ, by reason of such amendment.
    The district court, on appeal and submission, at its June term, 1855, found, upon the facts stated, in favor of Aylesworth and against the plaintiff.
    
      Thereupon the plaintiff moved for a new trial, on the ground that the finding of the court was against the evidence, and contrary to law. This motion was overruled, and judgment entered on the finding of the court.
    To reverse that judgment the plaintiff prosecutes this proceeding in error.
    
      Given £ Jeffries, for plaintiff, insisted—
    That the court had power to amend the original writ, and cited the 1st section of the act of March 12, 1845, 43 O. L. 114; and also the following cases, under similar statutes: 19 Wend. Rep. 99; 6 Hill’s Rep. 377; 1 Cow. Rep. 203; 13 How. Pr. Rep. 466; 14 Pick. Rep. 223; 13 Metc. Rep. 215, 476; 2 Cush. Rep. 486, 555; 1 Carter’s (Ind.) Rep. 17; 3 Porter’s (Ind.) Rep. 216; 5 Porter’s Rep. 192; 6 Porter’s Rep. 397; 8 Blackf. Rep. 5.
    That the amendment did not discharge the special bail from liability upon his recognizance, and cited 1 Cow. Rep. 601, 203; 3 Cow. Rep. 354; 4 Cow. Rep. 41; 7 Cow. Rep. 524; 1 Bingh. Rep. 68; 19 Johns. Rep. 173.
    That it is not for the defendant to object to the proceedings against him because there may have been errors committed in the proceedings against Lytle. 4 Blackf. Rep. 511; 7 Cow. Rep. 524; 16 Johns. Rep. 117; 9 Wend. Rep. 237; 1 Hill’s Rep. 346.
    
      John McSweeney, for defendant, insisted—
    That whether it was in the power of the court or not, to permit the amendment of the writ, the fact that it was amended, eo instanti released Lytle on common bail, and deprived defendant of any rights, by way of bail piece or otherwise, over the person of Lytle.
    That without the amendment of the writ, the filing of a declaration for a cause of action different from that specified on the writ, was, itself, a discharge on common bail. 1 Chit. Pl. 253; 1 Swan’s Pr. & Prec. 130, and authorities there cited; 7 Term Rep. 80; 6 Term Rep. 365; 13 East’s Rep. 273.
   Sutliff, J.

The original suit, in wbicb. the defendant became special bail, was commenced under and is governed by tbe act of June 1st, 1831, “to regulate tbe practice of judicial courts.” Tbe 9th section of that act provides that special bail shall be filed on tbe return day of tbe capias ad respondendum, or on tbe succeeding day; and it is provided by tbe 10th section, that if special bail be not put in and perfected in due time, tbe plaintiff may proceed upon tbe bail bond or rule tbe sheriff to bring in the body of tbe defendant.

It is true that it does not appear in this case that tbe special bail was entered within tbe time limited by tbe statute; but we do not think it is competent for tbe bail to object to tbe validity of tbe recognizance entered into, that by tbe favor of tbe plaintiff, tbe same was accepted at a later day in tbe term than be was by law obliged to suffer special bail to be of course entered. Indeed the statute is only directory, and it was always competent for tbe court, in their discretion, upon good cause shown, to suffer special bail to be put in at any time during tbe term at wbicb tbe capias ad respondendum was returned. And such is said to be tbe rule in tbe King’s Bench: “ Though tbe bail be put in tbe last day of tbe term, and tbe bill be put in at any time tbe same term, this is well enough by tbe course of that court.” See Roll. Abr. 333 ; Cro. Jac. 384; Bac. Abr. Bail. C.; 1 Tidd. Pr. (9th ed.) 279.

Tbe return day, or tbe day succeeding, is tbe limit only to tbe right of tbe defendant to put in special bail, of course. If tbe plaintiff insist upon this limitation of time, be may, in default of special bail having been entered within tbe rule, accept an assignment of tbe bail bond to tbe sheriff, and commence suit thereon; or be may, on motion, obtain a rule of court that tbe sheriff bring in tbe body of tbe defendant within tbe term. Tbe statute further provides that if tbe sheriff shall cause special bail to be put in, and justified if required, during the term, be shall be excused from bringing in tbe body. But if tbe sheriff brought in the defendant, he was thereupon committed. And being so committed, or in custody, the defendant, .by leave of court, might put in special bail at any time, even after verdict or judgment; and before a capias ad satisfaciendum had been issued. Parker v. Turner, 2 Chitt. Rep. 71; 18 Eng. Com. Law Rep. 253.

The other objection urged by defendant’s counsel to the right of recovery against the special bail, is the amendment of the original writ. It is insisted by counsel, that after the filing of the declaration in the original action, the bail, on motion to the court, would have been entitled to an exoneretur for the apparent variance between the cause of action indorsed on the writ and that set out in the declaration.

The court, by overruling plaintiff’s motion to strike the defendant’s plea in abatement from the files, may perhaps be understood to have expressed thereby an opinion in favor of its sufficiency; and if the writ had remained without amendment, the defendant, it would seem, upon his application to the court before judgment, might have obtained his exoneration. Eor it has long been recognized by the courts, as a general rule, that when a plea in abatement would be sustained to a writ upon which the defendant has given special bail, he ought to be discharged on common bail. But that rule is not conclusive of the question in this case. If the conditional undertaking of the defendant had become absolute, he was liable in the action against him on the undertaking, otherwise not. The terms of that undertaking were, that if the defendant, Aaron Lytle, should be condemned in that action of the plaintiff1 against him, he should pay the costs and condemnation of the court, or render himself into the custody of the sheriff for the same; or, in default of his so doing, that he, Aylesworth, would pay the costs and condemnation for him. A judgment was rendered against Lytle in that action for $1,361.20, debt, damages and costs, and the defendant failed either to pay the same or render himself into the custody of the sheriff'. These facts are shown by the record and the return of the sheriff'. It is not pretended that the defendant in fact obtained, or ever asked for an exoneration from his undertaking as bail. His defense, therefore, rested solely upon the proposition that Aaron Lytle was not in fact condemned in the action in which the defendant became special bail, but that the judgment so rendered in the case was upon a different cause of action from that in which the defendant so became bail.

The original writ commanded the sheriff to take the said Lytle and have him at the first day of the next term, etc., “to answer unto Robert K. Enos, in a plea of debt— debt $1280, damage $1000,” etc. On the writ was indorsed as follows: “ Suit brought on a certain judgment of the circuit court of the county of Porter, and state of Indiana, rendered by said circuit court at the September term thereof, A. U. 1852, in favor of said Robert K. Enos, and against said Aaron Lytle, for the sum of $1200 damages, and $80 costs of suit; amount sworn to as due, $1280. Hold to bail in the sum of $2400.”

The declaration was upon a judgment rendered by the same court, at the same time, between the same parties, and for precisely the same amount; the only variance being in this, that the declaration described the part of the judgment for damage as being $1236.94, leaving that part of the judgment rendered for costs only $43.06, instead of $1200 damages, and $80 costs; not varying, however, in the aggregate amount, the judgment sued upon and sought to be recovered from the defendant. "We think this a variance in the description rather than of the cause of the action expressed by the original writ.

The undertaking of special bail in the recognizance set forth in the record, is substantially the same in its terms with that of bail for appeal provided for by section 124 of the same act. The condition of each undertaking is, that the principal shall satisfy the judgment that may be rendered against Mm in the action. The only difference as to the undertakings being, that in case of special bail, the satisfaction is to be either by payment of the judgment, or by surrender of the principal, while, in the case of bail for appeal, satisfaction may be made by payment only. Tet, independent of onr very liberal statute of 1845, in relation to amendments, it could hardly be claimed that an amendment of the writ by leave of court, after appeal, so as to make the description of the judgment in the writ conform to that in the declaration, would discharge the bail for appeal.

The present is certainly a very different case from that numerous class of cases, both in England and in this country, in which an exoneretur has been granted to special bail, where an action was prosecuted different from that in which the bail was given. The case of Wheelright v. Jutting, 7 Taunt. Rep. 304, may be referred to as illustrative of the distinction. A rule was obtained in that case to stay proceedings in an action, like the one under consideration, on a recognizance of bail, on the ground that the plaintiff had failed in establishing the cause of action for which the defendant was arrested. It appeared the defendant had been held to bail to answer an action upon a bill of exchange on which the plaintiff had declared, and also inserted in Ms declaration, a count for goods sold and delivered, and on a writ of inquiry, had recovered on the latter count, but had offered no evidence on the count on the bill of exchange. The court observed that bail should always be acquainted with the nature and extent of their liability, as they would otherwise be subject to fraud, and made the rule absolute. And so again, in the case of Fetherington v. Goulding, 7 Tenn. Rep. 80, it was held, that where the bail had undertaken, in an action in assumpsit, and the plaintiff had failed to declare against the defendant in assumpsit, but had declared against him in an action of trover, an exoneretur should be entered on the bail-piece»

Rut to fully appreciate the force of the English cases reported upon the rights and liabilities of bail, we must have respect to their statutes and rules of court upon the subject. By the statute, 23 Hen. 6, c. 9, the sheriff might take bail, it is said, for any amount he pleased, and the bail was liable to all actions returnable the same term. Com. Dig. Bail K, 3 M. 1, Cro. Jac. 286; 1 Mod. 16; 10 Mod. 153, 327; Tidd’s Pr. 81, 82. Since that time, the statute 23 Car. 2, 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, the special hail was taken at the discretion of the judge. See Tidd’s Pr. 244; Bac. Abr. Bail, B. 3. It was afterward provided by statute, 4 Ann. c. 16, sec. 20, that, in the court where the action on the bond, or recognizance of bail, was brought, “ by rule or rules of the same court, the court may give such relief to the bail as is agreeable to justice and reason.” The statute, 12 Geo. 1, c. 29, provided that in cases above twenty*shillings, “ affidavit shall be made and filed of the cause of action, and the sums specified in the affidavit shall be indorsed on the process; and that the officer shall hold to bail for no more.” These several statutes, and especially that of 4 Ann. c. 16, sec. 20, giving the court by their own rules, almost absolute discretion and authority to summarily enter an exoneretur on a hail piece, will, doubtless, account for the seeming occasional discrepancy in the English cases upon this subject.

Toa like cause — the different statutes and rules of court —is to be attributed, in a great degree, that want of uniformity found in the reported cases of the different states upon this subject. In the most of the states, the liabilities and rights of the bail are defined, and the proceedings directed solely by statute; and the decisions of the courts of the different states must be, of course, respectively conformable to such statutory provisions.

But no case either in the English or American decisions has been brought to our notice, going to show the defendant to be in law exonerated, in this case, from his recognizance of bail.

At the time the defendant became special bail, as well as at the time the writ was amended by leave of court, a statutory provision in relation to amendments was in force in this state, providing as follows:

“ That the court in which any action shall be pending, shall have power to allow parties to amend any process, pleading or proceeding in such action, either in form or substance, for the furtherance of justice, and upon such terms as shall be just, at any time before or during the trial of such action, and before judgment rendered therein. Provided, that if such amendment be made in any pleading in matter of substance, as the court may in their discretion allow, the adverse party shall have time, according to the course and practice of the court, to answer the amended pleading, so as not to be prejudiced in conducting his action, prosecution or defense. Provided further, that process by which any action shall have been commenced, and on which aDy person shall have been arrested, shall not be amended in the return day thereof.” See act of March 12, 1845, 2 Curw. Stat. 1170.

Tbis statute, it will be observed, makes special mention of process, “ on which any person shall have been arrested,” and only prohibits amendment thereof in one particular — “ in the return day thereof; ” thus, by implication, permitting its amendment in any other respect, under the previous express provision, “ to amend any process.”

Under this liberal statute of jeofails, the court certainly had the same authority to allow the amendment of - the writ at the time the same was allowed and made, that by common law it would have had to amend a journal or record for the correction of an error which might have occurred during the same term, and while the proceedings were in fieri.

It is not supposed, however, that the court could, by an amendment, in either case, change the contract of defendant, or impose any other obligations upon him than those actually assumed by the terms of his undertaking, whether as bail for appearance, or to the action, or for appeal. But this undertaking was, that the defendant should satisfy the judgment obtained in that action. It was at least implied that all the proceedings in the action should be conducted according to the existing laws. No new cause of action has been expressed. The suit was commenced to recover the sum of $1280, with interest, for which a judgment was, both by the writ and declaration, expressed to have been rendered by a certain court, at a certain time, in favor of the plaintiff and against Lytle. No new cause of action, nor any increase or variation of the former cause of action, except to render more certain the description thereof, was made by the amendment.

Ve think, therefore, the amendment allowed by the court of common pleas was one “ for the furtherance of justice ” between the parties, and in no wise affected the recognizance of bail entered into by the defendant. And it will be seen by a reference to the case of Williamson’s Admr’s v. Hall, 1 Ohio St. Rep. 190, that the court in that case went much farther than we deem it necessary to go in this case.

The record shows that a judgment was rendered in the action at the April term, 1854, for $1,361.20 in favor of the plaintiff and against Lytle; and that a capias ad satisfaciendum, duly issued thereon against Lytle, previous to the commencement of the action against the defendant, had been duly returned “ not found.” Under this state of facts, we think the plaintiff was entitled to recover from the defendant, upon the recognizance of bail, the amount of the judgment so rendered at the April term, 1854, with interest thereon.

The judgment of the district court must, therefore, be reversed, and judgment entered in favor of the plaintiff.

Judgment accordingly.

Swan, Brinkerhoef, and Scott, JJ., concurred.

Bartley, C. J., dissented.  