
    CONSTITUTIONAL COURT,
    CHARLESTON,
    MAY, 1804.
    Stewart v. M’Clure.
    On a demurrer the court will examine the record to see who has committed the first fault, and will give judgment against the first fault.
    A scire facias against bail, under the act of 1785, must allege that the principal made default of appearance, and set forth the judgment against the principal clearly and certainly, in the terms thereof; and if it is defective in either particular, it will be bad upon demurrer. [ Vide Loiter v. Antonio, 4 M’C. 175.]
    An appearance conformably to the condition of a bail bond can only be effected by putting in bail to the action ; but if the plaintiff accept a plea upon a common appearance, it is a waiver of the bail. Ob diet. [Sed vide Harwood v. llobertson, 2 Hill, 336.]
    A bail bond with any other condition, than for the appearance of the defendant at the return of the writ, is void by the stat. 23 Hen. 6, c. 9; which statute is of force in this ¡state: and it does not obviate the objection, that the superadded condition expresses no more than the legal obligation of the bail under the act of 1785 ; for he was intitled to have avoided that obligation, by surrendering his principal before the ■ return of the writ, or by putting in bail, and then surrendering, or the plaintiff might have waived his right ta bail by accepting a plea. [Fide Saunders v. Hughes, 2 Bailey, 505.]
    This was a scire facias against the defendant, as bail to the sheriff for William Thomson, setting forth that the plaintiff brought an action against said Thomson, and held Mm to bail; and that the present defendant became bail for Thomson to the sheriff, for his appearance to answer to the plaintiff id the said action, and if Thomson should be condemned therein, that he, the said M’Clure, should satisfy the said condemnation and costs, or render the body of the said Thomson in execution : and further setting forth, that the said plaintiff recovered in the said action against Thomson, &c.; that the said M’Clure had not paid, or satisfied, &c.; and that the sheriff had returned to a ca. sa. against Thomson, non est inventus, &c.; and demanding execution against the present defendant, according to the tenor and effect of the said bail bond. The defendant pleaded that Thomson, after he, M’Clure, became his bail, was declared a bankrupt; and that the cause of action accrued before he was declared a bankrupt. Also, that the plaintiff was declared a bankrupt before the writ of sci. fa. was issued-; aii't that his estate and effects were assigned, according to the act of Congress, prior to the issuing of this sci. fa. The plaintiff replied, that he sued out a ca. sa. against Thomson orí the 80th of June, 1801, and that the sheriff returned thereto ill January, 1802, that the said Thomson could not be found, before the said Thomson was declared a bankrupt; and that although he, the plaintiff, was declared a bankrupt, and assignees appointed, yet that the assignees were not intitied to bring this sci, fa., for that the original cause of action, being notes of hand, had been previously assigned. To this replication the defendant demurred, and the plaintiff joined in demurrer. The demurrer was decided in Charleston district court, before Johnson, J. in favor of the plaintiff. The motion in this case was to reverse the decision of the district court, ou several grounds; and also to arrest the judgment, in case the court should think the demurrer unsupported.
    For the defendant it was argued, 1. That the bankruptcy of the principal, before the return of the sci. fa., discharged the bail. 2 Sellon’s Practice, 50, 55, 58. 1 Ld. Raym. 156. 8 T. R. 422. 1 Bur. 244. 2. That the bankruptcy ot the plaintiff, before the commencement of the suit, incapacitated him to sue. Cooper’s Law of Baukr. 318. The assignees of the bankrupt were iutitled to the action.
    In arrest of judgment, it was further argued for the defendant; that the bail bond in question was pursuant to the slat. 23, H. 6, c. 9; which is offeree in this State, see Appendix to P. L.8, That the condition thereof should have been for the appearance of the defendant only-, whereas, this appears to be for the payment oí the damages and costs, or surrender of the body in execution : and therefore, by the stat 23 H. 6, the bail bond is void. 1 T. R. 418. 4 T. R. 4¿8. Cro. Ehz. 178, 802. 1 Sellon, 133, 127, 32,177; That here was no default of appearance, for the defendant was admitted to plead to the original action ; and replying to his plea was an acceptance thereof, and therefore a waiver Ot the bail above; 1 Sellon, 238. It was admitted, that the defendant, in the original action, had not put in special bail above, or bail to the action; but he had pleaded to the original action, and issue was taken upon his plea, which was found for the plaintiff, and judgment was thereupon. That our act of assembly does not authorize a sci. fa. on the bail bond, but on the judgment;
    Oil the other side it was argued, that the bail were fixed «port the return of the ca. sa. before bankruptcy. The bankruptcy of the plaintiff, oi defendant’s principal, could make no di 'bre mb; The bankruptcy of the plaintiff could not be alleged a* «mv ram as an objection, because he must from necessity he plui iíf upon a sci. fa. to demand execution, unless the bail bond bad been assigned! to another; That the bail was fixed, if he had a right to surrender after appearance day, although he should be considered as special bail. Cited 2 Bl. Rep. 811. 1 Sellon, 185 1 Bur. 438. 1 Ld. Raym. 156. 6 T. R. «84. 5 T. R. 363. 8 T. R. 822. Í Bos. & Pul. 61. Curran’s B. L. 290, 185. Coop. B. L. 10.
    The action by sci. fa. on the bail bond must be under the act,; and the act authorizes the condition to be as in the case of a re. cognizance of special bail, or a special bail piece; The condition must be in the alternative,- to appear and put in special bail,- or, lot surrender; or pay, &c; The breach is stated in the words of the Condition, and it is clear, that the defendant in the original action did hot appear, as he was legally bound to appear, for he did not put in bail above, which is a legal appearance in such casé; and the replication to ins plea; although this does not appear, is no waiver of bail. The condition of the bail bond is no other than the law will imply upon default of the principal. The bail in such case' are liable, upon a Condition for appearance, to pay the damages and costs.
   Brevard, J.

delivered the opinion of the whole court.

The determination of the principal points in this case, depends or£ the true construction of the 10th section of the county court act of 1785, respecting bail, which relates to all the courts of law, “whether of supreme or inferior jurisdiction.” P. L. 369. The demhvref brings before the court two questions on the bankrupt law of Con.' gress, which are not necessary to he discussed and deeided, be-' Cause there is a much easier and shorter route to the decision of the demurrer. It is a well settled and’ convenient rule of law,- that on a deraiirrei' the court will examine the record, to see who has committed the first fault, in pleading, and will give judgment against the first fault; 2 Wils. 100. 1 Str. 299. 1 Bos. & Pul. 411, 413.

In this case the -plaintiff has committed the first fault: for first, hé has founded his scire facias on the bail bond, without stating any default of appearance of the principal, or any judgment against him ; and secondly, he has, in stating the condition of the bail bond, shewn that it is an illegal and void bond,- and that no action Can be maintained thereon.

To understand the clause of the county court act in question, we must take iulo consideration the preamble or introductory part thereof, and bear in mind that bail to the sheriff, is the kind of bail, and the only kind of bail in contemplation ; and tha',the clause was inserted for the-benefit and relief of such bail.-

All the perplexity and difficulty which has occurred in the construe* tion of the section of the act in question, must have arisen from confounding the different species of bail, and from a misapprehension, or misapplication of the terms “ common bul,” and “ special bail,” which aj,e use(j jn n. |f vve attend to the whole scope and design of the clause under consideration, it must be evident, that no other kind of bail, than bail to the sheriff, was intended to be benefited or af. fected by it: and therefore, all the doctrine and book cases insisted on in the argument, which have relation to other species of bail, can have no application or effect in the present case. The mischief or inconvenience against which the act intended to protect the bail to the sheriff, which bail are denominated “common bail,” ia set forth in the introductory part of the clause under consideration, in these words: “And whereas heretofore it hath been the law of this State, that upon the return of writs of capias ad respondendum where the defendant, or defendants, maketh default of appearance, to suffer the plaintiff to suspend the proceed, ings against such defendant, or defendants, aud commence original actions against the bail,, whereby the costs have been greatly and unnecessarily increased, and the defendant aggrieved; for remedy thereof,” &o. In such cases ihe bail ha-/ no relief, nor any recourse to the principal, until after a recovery against, them on the bail bond. And if the principal made default of appearance, the bail were at all events liable, and could not be discharged by surrendering the body of their principal. The remedy provided by the act is in these words: ‘‘ Be it enacted, that where any writ shall issue from any court within this State, whether of supreme or inferior jurisdiction, and the defendant shall give bail for his appearance. and shall make default, the suit shall be prosecuted to ju 'gme 't and execution agaiu-a such defendant, before any proceedings shall be hud against the common bail: and if the sheriff shall return upon the execution that the di teudant is not to be found, or hath no effects whereon to levy the debt and costs, then the plaintiff may sue forth a scire facias against such bail, to shew cause why execution for the judgment and costs, should not issue against him or them ; and on such sci. fa being,returned executed, judgment shall be entered up against such bail, and execution get forth as against the origi-al defendantThis remedy protects the bail from suits on the bail bond, such as might be prosecuted before the act, instantly on the default of the principal; and. requires of the plaintiff', before he can resort to the bail, to pursue the defendant to judgment and execution. After the return of the ex© Cution against the principal, either a non est inventus to a ca. sa., or nulla bona to a fi. fa., and not before, the plaintiff is at liberty to resort to the bad for the debt and co- ts recovered against the principal, and may sue forth a sci. fa. «gainst such bail. There is nothing in the act, which can be construed to take away the plain, tiff’s right of action on the bail bond as before the act. but only to suspend it; but the act has, in cases where Ins right has been so suspended until alter the return of execution against the principal, given him a more speedy and effectual remedy for obtaining satis, faction from the bail, by way of sci. fa. against the bail, “ to shew cause why execution should not issue against him or them, for the judgment and' costs.” Beiore the act, the bail were liable upon •default of appearance of their principal,. for the amount of the debt, or damages, and cesis, recoverable of the principal by an ori. ginal action on the bail bond : since the act, the bail are liable to the same extent, and no further, for the default of the principal, by a sci. fa. on the judgment. But. the act gives a further advantage to the bail, which they had not before. In a subsequent part of the clause in question, it is provided, “that nothing therein contained shall be construed to deprive (he common bail, in such action, from appearing and entering himself special bail, at any time before judgment in such action shall be signed.” Before the act, the bail to the sheriff liad no suon privilege. At the return of the writ, they might put in bail above or bail to the action, but not afterwards. This provision alio ws them to become special bail at any time before the judgment is sigued.and intitle themselves to surrender the body of their' principal in their own discharge, by entering themselves special bail.

In this case it is not stated that the principal made default, which is the gist of the action against the bail. “ Default of appearance,” which is the expression used in the act, must be understood in a legal and technical sense, and taken to meau a neglect or failure of the principal to appear at the return of the writ against him, and to put in bail to the action, or bail above. 3 Bl. Com. 290. The term “ common bail” is used in several places in the act to signify bail to the sheriff, or bail below, in coutradis. tinction to special bail, or bail above, or bail to the action ; and cannot be construed to .denote that fictitious sort of bail so called ig England.

The proceedings in this case do not recite or sufficiently state the recovery against the principal. A scire facias is in its nature a continuation'of some former proceedings, in which judgment has been rendered, or some debt acknowledged, and ought to pursue the terms of the original judgment, or recognizance. The judg? Ment a§0‘nst ^)e principal should have been clearly and certainly se*; f°rth *n terrns thereof, as well as the bail bond : and it ought to have been alleged that the principal “ made default of ap. 6 . „ . . .6 . ,, „ , . ... ' nf pear anee, for it is for this that the bail are answerable. I he common bail by the act may beeotne special bail, and intitle themselves to surrender. In this case it does not appear by the pleadings, whether they have done so, or not. If they have not, they were fixed for the debt, or damages and costs, from the time the judgment was signed. If they haye, they could not be fixed untij after the return of a pa. sa. against the principal. See 1 Com. Dig. 695. 1 Str. 511. 2 Sellon, 55. Bdt the plaintiff might dispense with bail above; and if he waived his right thereto, the bail are discharged. The acceptance of a plea is a waiver of bail. Here it is said that the plaintiff accepted the defendant’s plea, and tOolt issue thereon, whi,ch he cpuld not do without acknowledging the appearance of the defendant in court, and his capacity to plead. See 1 Sellon, 228, Barnes 92.

It has. been argued in arrest of judgment, that the bail bond in tbiis case, being conditioned formore than the appearance of the party, is void by the stat. 23 Hen. 6, c. 9, P. L. App. 8. To which it has been ahswered, that by operation of the act of 1785, the bail to the sheriff, after default of the principal, are liable as special bail; and therefore thttt the alternative condition expressed in the bond, be, jngno more than what in legal construction would otherwise bp implied, the bond is good, although contrary to the stat. 23 Hen. 6, being pursuant to the apt of 178,5: ana also, that the stat. 23 Hen, 5 is not of force here.

At common law, the sheriff was not compellable to take bail of any ; but by the stat. 23 lien. 6, c. 9, the sheriff is bound to let to bail. This statute has always been considered of force here. It is expressly recognized by the stat, 13 Car. 2. st. 2, c. 2, § 2, which is made of force here, see P. L¡. 76, It is virtually recognized by the stat. 4 arid 5 Ann, P. L. 96 ; and also by the circuit court act of 1769, P. L. 270, 271. This stat. 23 Hen, 6, prescribes the Ipnd of obligation which the sheriff.shall take, and requires that it shall be made to the sheriff, by bis napie of office, and conditioned for the appearance of the defendant at the return of the writ: and it declares, that if the obligation be taken in a different form, it shall be void. This statute is considered as a pub. lie hetj notwithstanding doubts formerly to the contrary, and need not be speóially pleaded. 2 T. R. 569. Plowd. 64. See Dyer. 118 b, 1 T. R. 418. 4 T. R. 504. Doug. 97.

Cheves, for the defendant. W. Drayton, for the plaintiff.

The bail bond in the present ease is n.ot conformable in form or Substance, to either the st Uute, or the act of assembly. Li is not for the appearance only of the party, but also, that “if he shall be condemned in the action, he shall satisfy the condemnation and costs, or render himself in custody of the sheriff; or that the bail will pay the condemnation and costs for him.” This- obligation is ¡equal to a recognizance of special bail m the first instance, which ¡the sheriff is not authorized to take. If-the bond had been taken in proper form, the bail would be infilled to exoneration in cases, wherein he would not be infilled, if the bond,1 as it now stands, be Valid. Suppose the defendant in the original action had surrendered himself before the return of the writ? See 6 T. R. 753, 1 Bos. & Pul. 325. 7 T. R. 122. The condition of this bond would not have been fulfilled. Suppose the bail had before the return of ¡In writ, put in bail above, and surrendered the principal ? 8 T. 11. 456. This would not have been a compliance with the Condition. Spppose the defendant at the return of the writ appeared, and the plaintiff waived his demand of hail, or the defend¡ant gave other security ? The condition would not be answered.

We are of opinion, that on the demurrer the defendant is intitled to judgment; and that if he weie not, and judgment ought to be for .the plaintiff on the demurrer, yet that judgment ought to be stayed, as the sci. fa. on the face of it shews no sufficient legal right of the plaintiff to what he demands.

Present, Watiks, Tuesevant, and Bkevarp, Justices; Grim-SB, J. concurred.

Note. A sci. fa. to revive a judgment is the continuance of the suit, and jüust be brought in that county where the original action is laid. A sci. fa. -pgaii*} bail on .a ygcogmizanee, is the first proceeding. See 3 Sellop’s xTae. 53,  