
    S. J. Rosenberg vs. J. R. McKain. The same vs. J. S. Depass.
    
    The only time necessary for a ca. sa. to remain in the sheriff’s office, is that which will enable him to search for the defendant, and truly to return non est inventus. Three days held to he sufficient.
    To an action against bail, it is no 'defence that the cause of action in the original declaration against theprincipal, is defectively stated.
    An objection that the affidavit to hold to bail does not state how or on what account the defendant became indebted to the plaintiff, nor that the debt was due, 'cannot be made by plea to the action against the bail. It should be made by motion to have an 'exoneretur entered on the bond.
    An affidavit to hold to bail which states that the defendant is justly indebted to the plaintiff in the sum of, &c. by promissory note dated, «Sic. is sufficient.
    Where the bail plead that the condition of the bond does not conform to the stat. 23 H. 6, c. 9, a replication affirming that it does conform, should not conclude to the country ,
    On a demurrer the rule is to give judgment against the party •whose pleadings were first defective.
    Where, in an action against bail, the f bond, is set out in the declaration, an objection that the condition does not conform to the law, should be made by demurrer and not by plea. .
    A bail bond is not void because the damages aire set out in the condition..
    
      Before O’Neall, J. at Kershaw fSpring- Term, 1846.
    These were actions of debt on bail bond. against the bail. The original action against the principal, Charles Marechal, was in assumpsit on a promissory note for two hundred and forty dollars, dated the 15th June, 1842, and payable, four months after date, to M. Goldberg, or bearer. The affidavit to hold to bail was dated the 8th May, 1843, and was as follows: “ Before me, personally appeared S. J. Rosenberg, who upon oath saith that Charles Marechal is justly indebted to him in the sum of two hundred and forty-four dollars, by his promissory note, dated June 15th, 1842, and refuses to pay the same, and that no part thereof has been paid.” The declaration against Marechal was as follows:
    “ Charles Marechal, the defendant, was attached to answer to Salen J. Rosenberg, bearer of a promissory note, payable to M. Goldberg, or bearer, the plaintiff, of a plea of trespass on the case and so forth : And thereupon, the said plaintiff, by Black & Black, his attorneys, complains ; for that, whereas the said Charles Marechal, the defendant, on the fifteenth day of June, in the year of our Lord one thousand eight hundred and forty-two, at Camden, in the District and State aforesaid, and within the jurisdiction of this court, made his certain promissory note in writing, bearing date.the day and year aforesaid, and thereby then and there promised to pay the said M. Goldberg or bearer, which bearer the said Salen J. Rosenberg now is, the full and just sum of two hundred and forty-four dollars, for value received, four months after the date thereof,- and af-terwards, to wit: on the day and year aforesaid, the said defendant, in consideration of his liability by reason of the premises, upon himself- assumed and faithfully promised the said plaintiff to pay him the said sum of money, in the said note specified, according to the tenor and effect of the said note: yet the said defendant has not, as yet, paid the said sum of money, or any part thereof, to the said plaintiff, although often requested so to do, but to pay the same to the said plaintiff, the said defendant has hitherto wholly neglected and refused, and still does neglect and refuse, to the damage of the said plaintiff five hundred dollars, and therefore he brings suit, and so forth.”
    The condition of the bail bond on which these actions weie brought was as follows :
    “ The condition of the above obligation is such, That if the above-bound C. Marechal do appear at the Court of Common Pleas, to be holden at Camden, for Kershaw District, on the third Monday in October next, to answer to S. J. Rosenberg, plaintiff, to a plea of trespass on the case and so forth, as also for . certain promises and assumptions by the said defendant, to the said plaintiff, made and not performed, to the damage of the said plaintiff two hundred and forty-one dollars, then the above obligation .to be void and of no effect, or else to remain in full force and virtuev
    The questions made in the cases arose on the pleadings, and sufficiently appear in the grounds of appeal and, the opinion of the Court, of Appeals.' All questions were ruled by his Honor, the presiding Judge, in .favor of the plaintiff, and he had verdicts for the amount of his judgment against Marechal. The defendants appealed, on the following grounds:
    1. Because it appears from the declaration, that the writ of capias ad satisfaciendum, agáihst Marechal, (the principal,) remained in the sheriff !s office only from the 25th March, 1844, to the 28th March,'1844.
    '2. Because the declaration in the case of Rosenberg vs. Marechal, sets out no cause of action against the said Marechal, and the whole record is so irregular that no valid judgment could be pronounced thereon. And failing in this motion, then for a new trial: Because his Honor erred in overruling the pleas and demurrer.
    
      Smart, for the motion.
    
      Caldwell, contra.
   Curia, per

O’Neall, J.

The first ground for non-suit cannot avail the defendants. The ca. sa. was lodged before return day, regularly returned non est, and after the term to which it was returnable, thésé writs, in debt were sued out against the bail. This is all which by law is required ; Ancrum vs. Sloan, 1 Rich. 421; Saunders vs. Bobo, 2 Bail. 492; Saunders vs. Hughes, 2 lb. 514. In Saunders vs. Hughes, the ca. sa. was, in fact, only eleven days in the sheriff’s office: it was held to be,quite enough. The only time necessary for the ca. sa. to remain in the sheriff’s office is that which will enable him to search for the defendant, and truly to return non estinventus.

The second ground is equally ineffectual. The declaration in the case of Rosenberg vs. Marechal is very in-artifieially drawn, but still it sets out the making of a promissory note to Goldberg or bearer; that the plaintiff was the bearer, and a promise to him. This would have been enough to prevent an arrest of judgment. For, although not very technically stated, yet there is a statement of a good cause of action, on which the court can give judgment. This is enough. But if it had been a defective statement, still it would not have availed the bail. To have even an exoneretur entered on the bail piece they must shew some substantial variance between the cause of action set out in it, and that declared on, — mere technical objections to the record constitute no ground of exoneretur. Much less can they be set up as defence under regular pleading to an action on the bail bond.

The ground for new trial makes it necessary to consider the various pleas, under which questions for the court arose. The first of these is the 2d plea ; that the cause of action set out in the recovery is not the same with that mentioned in the bail bond. On comparing the bail bond with the record set out in the declaration, it seemed that there was no variance. The defendant was bound to answer to the plaintiff in an action of assumpsit. The record produced agreed with that requisition. The affidavit to hold to bail sets out that the defendant, Marechal, was indebted to the plaintiff by note of hand. The record shews the same fact. The third, fourth and fifth pleas are founded in mistake. The sixth plea objects that the affidavit to hold to bail does not set out how or on what account the defendant, Marechal, became indebted to the plaintiff. The 7th plea urges that the affidavit does not set out that the debt was due. Neither of these objections are tenable. Neither of them can be made by plea. If available at all, it is by motion to have an exoneretur entered on the bail piece. Saunders vs. Hughes, 2 Bail. 509. But the cause of action is very sufficiently set out in the affidavit; it states that the defendant, Marecha!; is “justly indebted to him” (the plaintiff) “in the sum of two hundred and forty-four dollars, by -his promissory note, dated June 15th, 1842.” This is a.better statement of the cause of action than that in Saunders vs. Hughes, which was held to be sufficient. So, too, it is aS explicit as that in Tobias vs. Wood, 1 McM. 103, which was held not to be cause for an exoneretur. The- case of Tobias vs. Wood ruled, that when an affidavit, as in this case, stated that a party was indebted to another, it stated a present and not a future debt. The defendants’ 8th plea sets out the statute of H. 6, and avers that the bail bond, was not taken in conformity to it. The plaintiff replied that it was, and tendered an issue to the • country: The defendant demurred, on the ground that the replication makes an issue of fact of a question of law. There is no doubt this is true. But the rule is, on a demurrer, that the court goes back to the first fault in pleading. The defendants’ plea is just as objectionable as the plaintiff’s replication. The .bail bond had been fully set out in the declaration, and if it does not conform to'the law, there was no question of fact; it was a legal question, and should have been- -made by demurrer and not by plea. The defendants’ eighth plea was, therefore, bad, and under their own demurrer was obliged to be overruled. The condition of the bail bond was, however, perfectly good. It is true, the statute of H. 6, c. 9, only requires the bond to be conditioned for the party’s appearance at the day contained in the writ. This, in Saunders vs. Hughes, was held to be an appearance at the return term of the writ, and that the condition, to make that certain, must give the name of the plaintiff, and the form of the action to which the defendant is required to answer: 2 Bail. 512. The Act of 1839, 11 Stat. 29, adopts that, and requires the condition to contain a provision for the appearance of the defendant at the Court Housé of the district, to answer to such plea as may be expressed in the process of the plaintiff, at the term of the court next succeeding the return day thereof.” ' That the condition sets out the damages does not affect its validity: it was unnecessary to be stated, and cannot, under a familiar maxim, utile per intile non vitiatur, affect the bond.

The defendants’ motions are dismissed.

Richardson, Evans, W arde aw and Frost, JJ. concurred.

Butler, J. absent at the argument.  