
    
      James Moyers, Assignee, v. Timothy Center.
    
    When a surrender of the principal by his bail, is made to the Sheriff, it is necessary, forthe full protection of the plaintiff, that the Sheriff should acknowledge the surrender in writing.
    For the regulation of future practice, it is ordered by the Court, that when the surrender of the principal, by his bail, is made to the Sheriff, he shall acknowledge the surrender by indorsement on the bail bond, or by a separate instrument of writing, in which shall be stated the case or casse in which the surrender has been made.
    
      
      Before Mr. Justice Withers, at Columbia, March Term, 184S.
    This action was brought by the plaintiff, as assignee of a bail bond against the defendant as one of the sureties of Asa Bell. The issue presented in the pleadings, and the only question contested in the cause was, whether the defendant had rendered up to the Sherifi (Kennerly) his principal, Bell.
    The first ground of appeal assumes that Sterling Rives, who was also one of the sureties of Bell on the Bail Bond, was an incompetent witness for the defendant, his co-surety, to prove the alleged surrender.
    He was admitted as a witness in that behalf, but not until a full release was executed and delivered to him by Center, the defendant. The presiding Judge did not think it altogether clear, that he might not have been competent without a release ; but upon receiving that, he saw no sufficient ground to exclude him.
    The second position taken in the notice, makes it necessary to report the evidence, in relation to the question of surrender.
    Bell was arrested on the 2d February, 1841, which was ¡the date of the bail bond, and the writ was returnable to the March term of the said year.
    
      $teplfng W. Rives, (examined for defendant) said Bell ®ras surrendered to the Sheriff on the first day of the Court, next succeeding the date of the bail bond. I and Center carried him to Sheriff Kennerly, and surrendered him in the office. Genter made the surrender, and said he had brought Mr. Bell, and wished to give him up. Kennerly said he was released. This occurred in the Sheriff’s office. I think Bell was here nearly every day of the term of the Court. Sheriff did not put him in jail. Bell was present at the time of surrender. Ithink it was in the forenoon that we carried Bell to the Sheriff. Kennerly was at the desk, I thought he understood the business. I don’t know whether he went after the Judge forthwith. 1, Ceqter, and Bell, came part of the way from Home together — though I had, myself, no arrangement with Bell about the surrender..
    
      Henry Gradick said: I was in company with Center at the Sheriff's Office. Bell was also. We met Bell where he lived, and came with him to Columbia. Centerfold Kennedy he gave up Mr. Bell. Kennedy said, “well.” It was the first day of Court in March. When we went into the Sheriff's Office, Center, Bell and I were present certainly. Center requested me to go with him on the occasion. I don’t know in what c.ase he was surrendered. It was on a bail bond, and, I think, after Court was called.
    Testimony of Plaintiff in reply:
    
      Mr. Bradley : I was deputy of Kennerly for the three last years of his term; was with him in that character before 1841, and did the most important part of the business. Kennedy did little himself. On the 1st day of Court, in March, 1841, I was in the Sheriff’s office and the CourtHouse — don’t remember to have seen Asa Bell, Center, or Rives; and have no knowledge of any such surrender as is mentioned during that week: nothing was ever said to me about it then. Since Center has. been sued, he asked me if I was present, or know anything of Bell’s having been surrendered. At the time referred to (March, 1841,) Bell was bound in more than one case — two I remember. (The witness then mentioned two cases of Moyer’s, the present Plaintiff, and one of P. Flynn’s, against him.) The surrender could not well have been made without my knowledge, as it was my business to take new bond, or lock up the prisoner.
    
      Robert Miller: (This witness was one of Kennedy’s sureties on his official bond, and was objected to as incompetent to testify in this case, by the defendant; the presiding Judge overruled the objection, and he said) I was in the office when Center and Rives, and two of the Bells, came, just before the Sheriffs office. Kennedy was in the act of starting for the Judge, and had no conversation with the parties at that time, except to say he could not attend to any business then.. — ■ There were many persons about the office at the time, and much noise. I was a sort of deputy, and much about the , office that day. No surrender of Asa Bell was made to my knowledge. I was there from that time till 12, and no surrender was made during the intermediate time. When Kennedy went after the Judge, I went into the office, and was generally there till 12 o’clock. I- might have gone into the Court Room. I can’t say whether any of the parties before mentioned were actually in the office when Kennedy went out, but all were not in. Two of the Bells were in the crowd. I saw Asa Bell about several days. Bradley was in the office, and Palmer was engaged in writing for the Sheriff at that time. I don’t remember that Kennerly was in the office from the time he went for the Judge till the Court adjourned. He generally staid in the Court Room. I have heard (the time was not fixed) in a conversation, Center being present, that Bell had been brought down to be surrendered, but had not been. Bradley always looked after the business of surrender.
    
      Mr. Palmer: About the 3d Monday in March, 1841, I might have been employed in writing for Sheriff Kennerly ; had been so employed from the beginning of that year from time to time. No surrender of Bell was made within my knowledge.
    The jury were told that certain formalities required in England to enable bail to surrender their principal, as a Judge’s order, were rendered unnecessary by the Act of 1809. The transactions should have been in good faith, and accompanied by circumstances, such as would render the object intelligible to the Sheriff. Bell’s body should have been placed in the Sheriff’s power, at a place where he could have secured his custody. The surrender should have been so far distinct and unequivocal, that the Sheriff could have lawfully detained the prisoner, and at the same time become subject to a liability to produce his body when demanded properly. It ought to appear that the Sheriff accepted the defendant, Bell; that'is, acknowledged the prisoner in his custody. The matter ought to be-made clear, by the party alleging the surrender — though the Sheriff might dispense with what he might require, and therefore he might receive the prisoner, if he would, and actually did in the street or elsewhere. The cases of Boomar vs. Poole, 2 Spear, 119, and Glover vs. Gomillion, 2 Rich. 554, were read to the jury by the plaintiff’s counsel.
    The jury returned a verdict for defendant.
    The plaintiff moved the Court of Appeals for a new trial, upon the following grounds:
    1. Because the co-obligor, Rives, was not a competent witness.
    
      2. Because the evidence having proved that there had been no surrender of the principal, Bell, by his bail, the verdict of the jury was not only against the decided weight of the evidence in that particular, but without any sufficient and legal evidence, and therefore contrary to the law in relation thereto.
    Gregg, for the motion.
    W. F. De Saussure, contra.
    
   Frost, J.

delivered the opinion of the Court,

Without the security furnished by bail process for the personal appearance of the defendant’ to abide by and perform the judgment of the Court, a suit at law would be, in very many cases, an idle and impotent proceeding. By the practice, in Westminster, which obtained in our Courts, prior to the Act of 1809, this security was very strictly enforced. After arrest, the Sheriff was bound to produce the body of the defendant at the return of the writ, to answer to the plaintiff. Though the Sheriff was required to admit the defendant to bail, the bail bond served only for his own indemnity. If the defendant were not produced at the return of the writ, the plaintiff had his option, either to take an assignment of the bond to the Sheriff and proceed upon that; or to enforce, by a rule against the Sheriff, the production of the body. When the defendant was produced, he was committed to prison if he did not give bail to the action. This was done by the defendant and his sureties entering into a recognizance of bail before one of the Judges. Exceptions to the bail were heard by the Judge. The bail could not surrender their principal without a Judge’s order; on whose mittimus the defendant was carried to prison. If the defendant escaped before he was delivered in prison, the bail were liable; nor was the bail effectually discharged until an exoneretur was entered on the bail piece.—Sel. Prac. 160.

By the Act of 1809, which, in effect, converted bail to the Sheriff into bail to the action, and declared a Judge’s order for the surrender of the principal unnecessary, the agency of the Judge was devolved on the Sheriff, who takes the bail bond, and to whom the surrender of theprin-cipal is made by the bail. This change lessened the security of the plaintiff for the person of defendant, by dispensing with notice to his attorney of the taking of bail and surrender of the principal, and by the disuse of the formal proceedings by which those acts were before guarded. The loose practice which has since prevailed in the surrender of bail, it was designed to correct by the recent cases of Bomar v. Poole, 2 Spear. 119, and Clover v. Gomillion, 2 Rich. 554. In the latter case, it is prescribed, that every render should be an actual and honest delivery of the body to the custody of the Sheriff; such as clearly to make the Sheriff liable for a subsequent escape. It will not suffice for the bail to offer the principal to the Sheriff in the street, in his office, or other place, where there may be a chance of escape ; unless the Sheriff, there, after full notice, expressly accept the body. The Sheriff has the right to take time for all necessary inquiries, and (after ascertaining the right of the bail to render and his right to receive,) to require that the body be delivered in jail, with exact notice of the case in which it is rendered. The bail, on their part, have a right to require the means of distinctly proving what has been done ; of which none can be so apt as a receipt from the Sheriff, containing all necessary-particulars.” These requirements, it will be noticed, respect only the Sheriff and the bail, and specify the evidence eaclr may demand of the other for his security, leaving it optional with each to demand it or not. The protection of the plaintiff is over-looked. It may happen, through the carelessness or ignorance of the Sheriff and the bail, that they neglect to verify the act of surrender by such evidence as, while it serves to protect each of them, may also afford to the plaintiff á certain remedy against either of the parties, who may be delinquent, for his damages in case of an escape. This risk, the plaintiff must always incur so long as written evidence of a surrender is not required. It may happen, as in this case, that the testimony of witnesses to the surrender may be so nearly balanced, that it may support a verdict, either affirming or negativing the fact; and, on the same proof, the plaintiff fail to recover, successively, against the bail and the Sheriff But even if the evidence of a surrender by witnesses, in an action against the bail, he indisputable, the plaintiff may, by their death or removal, before the trial of an action against the Sheriff, be defeated of his remedy for an escape. Such results, proceeding from defective evidence of an act, done in the course of judicial process, would be a just subject of complaint and of reflection against the administration of the law.

By the Act of 1809, it was designed to dispense with such proceedings only as were considered dilatory and expensive. There is nothing to warrant, the Court in dispensing with such evidence of a surrender as was required before the Act, and may be proper, and convenient, and consistent with the provisions of the Act. The written endorsement by the Sheriff on the bond of the surrender, for all purposes of evidence, is equal to an exoneretur. Such an endorsement is neither dilatory nor expensive, nor difficult. It would preserve the evidence of the fact for the security of the plaintiff, as well as of the bail and Sheriff, and affords, in case of a surrender, the same degree of evidence which is required of all other proceedings on judicial process. The defendant is discharged from the custody of the Sheriff,^on the undertaking of his bail that he shall render himself in execution, or that they will satisfy the judgment. It is a mild condition of the discharge of their liability to the plaintiff, that the surrender of the defendant should be certified in writing. It would be more consistent with the certainty and permanence of the evidence of acts, done in the course of judicial proceeding, that the surrender should be endorsed on the bond, where it would be preserved and always accessible among the records of the Court, but it 'is not deemed expedient to require more than that it should be evidence by writing, for the regulation of future practice.

It is ordered that when the surrender of the principal, by his bail, is made to the Sheriff, he shall acknowledge the surrender by endorsement on the bail bond, or by a separate instrument of writing, in which shall be stated the case or cases in which the surrender has been made.

This case shows how precarious must be the plaintiff’s remedy against bail for an escape, when it depends on the testimony of witnesses. The jury were instructed respecting the law in conformity with the decision in Glover v. Comillion. Though the verdict is for the defendant, the evidence does not satisfy the rules prescribed. It does not show an actual and honest delivery of Bell into the custody of the Sheriff, so as clearly to make the Sheriff liable for a subsequent escape. By two witnesses, on the part of the defendant, it was stated that the defendant, in the crowd and confusion in and about the Sheriff’s office, at the hour of opening the Court, on the first day of the term, went with Bell into the office; and told the Sheriff, who was standing at his desk, that he had brought Bell and wished to give him up. According to one witness, the Sheriff replied “well;” and according to the other, “you are released.” One of the witnesses thought the Sheriff understood the business. He also said Bell was surrendered on a bail bond, but did not know the case. Bell was at Court, every day of the term, but the Sheriff did not take him-. The render of Bell in the Sheriff’s office was insufficient, unless the Sheriff expressly accepted the render, of which his replies and conduct leave great doubt. The intention of the defendant to render Bell, in discharge of the bail, was not proved to have been stated to the Sheriff, further than defendant said he wished to give him up ; nor was the case named in which the surrender was made; and so-the purpose of the defendant could have been known- to- the Sheriff, only on the assumption that he recollected two bail bonds of the parties which he had in his office. On the part of the plaintiff, the Sheriff’s deputy and clerk deny all knowledge or information of any surrender, and they show many circumstances to confirm their belief that no surrender was in fact made. The proof falls short of the important requirement that it should be such as clearly to make the Sheriff liable for an escape. . Indeed it may safe-]y be affirmed that the evidence would equally support a ■.verdict in favor of the Sheriff, if the action were against him for an escape.

The motion is granted.

O’Neall, J. Evans, J. and Withers, J. concurred.

Motion granted.  