
    A. J. McKnight vs. T. R. Sessions.
    In an action on a bail bond, an arrest of the principal, by the sheriff, under ca. sa., may be shown by parol.
    The arrest of the principal under ca. sa, discharges the bail; and a subsequent discharge of the principal with his consent under the Act of 1815, does not revive the liability of the bail.
    BEFORE GLOVER, J., AT GEORGETOWN, SPRING TERM, 1854.
    The report of his Honor, the presiding Judge, is as follows :
    “ The action was debt on a bail bond. The defendant was the surety of J. M. Commander, against whom bail process had issued at the suit of the plaintiff; who, having obtained judgment, entered a capias ad satisfaciendum in the Sheriff’s office, and the only question submitted by the pleadings, or made by the evidence was, has there 'been such a breach of the condition of the bond as fixes the liability of the bail ?
    “E. Waterman, Jr., Ex-Sheriff of Georgetown, stated, that a ca. sa. was entered in his office, in the case of A. J. McKnight vs. J. M. Commander, and unddr this ca. sa., Commander was arrested. ‘ He put his hands upon him, and regarded him in his custody.’ Commander promised to give a bond if plaintiff would not consent to release him. He was at large, because of the understanding between witness and Commander respecting his release by the plaintiff. .Witness did not tell Mr. Dozier, that he had not arrested nor released Commander, but that he had taken no bond. The plaintiff told witness, after the arrest, to let Commander alone, who produced an order from the plaintiff to discharge him, and witness did so. He made no record of the arrest at the time, because he was waiting to hear from the plaintiff, and to know if he would discharge Commander.
    “ Mr. Dozier stated, that E. Waterman, Jr., said to him, on the wharf, before last Court, that there had been no arrest nor release : that he had written 'to Commander, who replied, that if plaintiff wpuld not agree to the proposition to release, he would surrender.
    The Jury was- directed to enquire, if there had been an arrest of Commander under the ca. saand if he had been discharged from that arrest by the agency and direction of the plaintiff. These were the only questions involved and litigated, and their decision depended on the construction of the evidence, which was contradictory; and, in the apprehension of the presiding Judge, the decision of both questions was properly for the jury, to whom he submitted it.
    “Their verdict was for the defendant.”
    The plaintiff appealed, and now moved for a new trial on the grounds:
    1. Because there was no evidence of any actual arrest sufficient to discharge the bail.
    2. Because the statements of E. Waterman, the late sheriff, respecting a certain constructive arrest of the principal, were entirely too indefinite and vague to rebut the legal presumption arising from the silence of the record; more especially as the said E. Waterman, by bis contradictory statements, showed that his acts had reference to no fixed purpose beyond giving notice to the principal of oa. sa., and allowing him time to consult the plaintiff.
    3. Because the law having directed the manner in which ■ the sheriff shall make known his official acts, it is incompetent to allow secondary evidence without proof of the loss of the primary.
    4. Because the same certainty of proof should be required to establish an arrest under a oa. sa., as is required to establish the fact of a surrender by the bail. Any less certainty is destructive to the rights of the plaintiff in requiring the bail, and his Honor should have so instructed the jury.
    5. Because, if the principal’s arrest by the sheriff was sufficiently proven, his subsequent release by the plaintiff with his own consent, restored to the plaintiff all his rights and remedies against the bail.
    
      Mitchell, for appellant.
    
      Simonton, contra.
   The opinion of the Court was delivered by

GloveR, J.

In civil process the return of the sheriff on the writ is evidence of the arrest; but like any other fact, it may be shown by proof aliunde. In the case of Moyers vs. Center, (2 Strob. 439,) the Court ordered that the surrender of bail hereafter, should be acknowledged by the sheriff on the bail bond, or by a separate instrument of writing; and it has been insisted in argument, that the same certainty of proof should be required to establish an arrest under a capias ad satisfaciendum. Objections may be suggested to such an application of the order, but it is only necessary to say, that the Court has confined it to the surrender of bail, and that it does not, nor was it intended to apply it to an arrest.

Admitting that the arrest was proven, the appellant submits that the subsequent discharge of the principal by the plaintiff, with his own consent, restored to the plaintiff all his rights and remedies against the bail. The arrest of a debtor is legally a satisfaction of the debt, and the liability of his bail then ceases, unless the provisions of the Act of 1815 (6 Stat. 1,) have modified the law in that respect. Under the Act, the debtor is expressly discharged from the arrest, whilst the lien of the judgment ;'on his estate is preserved. A special liability is created, having reference to the estate, and not to the person of the debtor. The active energy of the ca. sa. ceases with his discharge, and if he is liable to arrest afterwards, the plaintiff must take out another ca. sa. against his body, as the Act directs. If the rights and remedies of the plaintiff against the bail be restored after a discharge under the Act of 1815, so too would the bail be restored to his co-relative rights and remedies; yet it cannot be maintained that the principal, in such a case, continues in the custody of his bail, and may be surrendered by him.

We are of opinion that the arrest was established by sufficient evidence ; that it discharged the bail, and that the subsequent release of the principal from imprisonment revived no liability on the part of the bail.

Motion dismissed.

O’Neall, Wardlaw, Withers, and WhitNer, JJ., concurred.

MüNRO, J., was of counsel, and gave no opinion.

Motion dismissed.  