
    Saunders v. Gaines.
    Monday, March 30th, 1814.
    Action of Covenant — Judgment by Default — Death of Defendant before Writ of Inquiry — Scire Facias. — If the defendant in an action, of covenant die, after judgment by default against him as the bail for his appearance, and before a writ of inquiry executed; the plaintiff cannot have a scire facias against the bail, but only against the executors or administrators of the defendant.
    
    Stephen Saunders was appearance bail for a certain William Murray, at the suit of Philip Gaines, in an action of covenant in the District Court holden at Washington Court-house. At Rules in the Clerk’s office, in September, 1807, a judgment by default was entered against the defendant and bail, and a writ of inquiry awarded, and at October term, 1808, (the writ of inquiry not having been executed, and no defence having been made by the bail; but the defendant having departed this life since the judgment by default,) the suit was entered, “abated as to the defendant,” and on the motion of the plaintiff, a writ of scire facias was awarded against the bail, which being returned executed, he afterwards ^pleaded, and a verdict and judgment were obtained against him.
    To this judgment a writ of supersedeas was granted by a judge of this Court.
    Wickham, for the plaintiff in error,
    observed that, by the defendant’s death after the writ of inquiry awarded, and before it was executed, the appearance bail was discharged. .
    No counsel appeared on the other side.
    
      
      See monographic note on “Covenant, The Action of” appended to Lee v. Cooke, 1 Wash. 306.
    
    
      
      Note. The bail in such case appears to be discharged altogether, as no mode of proceeding against him is given by law; the writ of inquiry, being against the defendant and the bail, cannot be executed as to the bail alone, and judgment entered against him thereupon, separately from the defendant; (see Wallace and others v. Baker, 2 Munf. 334;) neither can he be included in the judgment against the executors or administrators; because the judgment against them is de bonis testatoris or intestati, and that against the bail de bonis propriis, which two different modes of recovery would be incongruous, and cannot be joined in one judgment. But where the bail has defended the suit and pleaded, if the defendant die at any time pending the suit, I apprehend the bail is not discharged; because the Act of Assembly declares "he shall be subject to the same judgment and recovery as the defendant might, or would be subject to, if he had appeared, and given special bail.” And if the defendant die between the verdict on the writ of inquiry, and the judgment thereupon, it seems that judgment is to be entered against him and the bail, in like manner as if he were living. See Revised Code, 1st vol. p. 110, the latter part of the 20th section. Where the bail, having defended the suit, and pleaded while the defendant was living, waives his plea after the defendant’s death, I presume the writ of inquiry is to be awarded, and judgment entered against the bail alone; because, in that case, it cannot be entered against the defendant as in Wallace and others v. Baker. — Note in Original Edition.
    
    
      
       Note. See Revised Code, 1st vol. p. 78, ch. 66, sect. 26; and p. 87. ch. 67. sect. 20.
    
    
      
       Note. The suit ought not to have been entered 1 abated” in this case. See Revised Code, 1st vol. p. 110, ch. 76, sect. 20. — Note in Original Edition.
    
   Thursday, April 2d, the president pronounced the Court’s opinion, “that the plaintiff in error could not be legally proceeded against by scire facias.” The judgment was therefore reversed, “the verdict and all the proceedings subsequent to the awarding of the scire facias, (including the order, set aside, and the cause remanded for further proceedings against the representatives of William Murray, for whom the plaintiff was appearance bail,) according to the Act of Assembly. ” 
      
       See Revised Code, 1st vol. p. 110, ch. 76. sect. 20.
     