Scire facias against bail. The plaintiff sought to subject the defendant, who was the sheriff of Orange County, as the special bail of one Nathaniel J. King, to the payment of a judgment which he had recovered in Orange County Court against the said King, and Henderson, Norfleet, and Durham. The defendant, among other pleas, pleaded"nul tiel record, no ca. sa., ca. sa. void as against principal." The plaintiff offered in evidence a copy of the record of his suit and judgment against the said King and others, and also the ca. sa. issued upon the judgment. On the return of the original writ it appeared that the defendant, then sheriff of Orange, had taken no bail from Nathaniel J. King, and it was admitted that the plaintiff had directed him not to take bail from the other defendants. The return on the ca. sa. was as follows: "King not to be found. I am directed by the plaintiff's attorney to execute this process on King only. See indorsement hereon." This indorsement was: "I am instructed by the plaintiff to direct the sheriff to execute this ca. sa. upon King only. 17 January, 1842." Signed, "J. W. Norwood, Atty." For the defendant it was contended that the plaintiff was not entitled to recover for the following reasons: First, that the ca. sa. issued to the sheriff did not correspond with the judgment, for that the judgment was against Henderson, Norfleet, Durham, and King, and the ca. sa. only against the three last, and was, (237) therefore, void; and in support of this objection he offered in evidence the original entry of the judgment on the records of the county court, which corresponded with that recited in the sci. fa., being against Norfleet, Durham, and King only, except that it had this caption in addition, viz.: "Trice v. Henderson, et al." Secondly, that the sci. fa. charged that the defendant was the bail of Norfleet, Durham, and King, when he had been instructed to take no bail of the two first, which fact was admitted. Thirdly, that the sheriff was not permitted to execute the ca.sa. upon Durham and Norfleet by the plaintiff, but was directed to serve it on King only. The defendant called upon J. W. Norwood as a witness to prove some payments upon the judgment. He stated that the obligation upon which the judgment had been obtained was assigned to him by Trice for the benefit of certain of his creditors; that he had had the management of the judgment; that the defendants had *Page 173 received the full benefit of all payments made by them or any of them, at the time the judgment was rendered, and nothing had since been paid to his knowledge. He further stated that the defendants Norfleet and Durham were insolvent at the time the judgment was obtained, and had continued to be so, and for that reason the sheriff had been instructed not to execute theca. sa. upon them.
His Honor overruled all the objections of the defendant and decided all the issues to the court in favor of the plaintiff, and the jury found all the issues of fact in his favor. Judgment being rendered accordingly, the defendant appealed to the Supreme Court. Is the bail of King liable to satisfy the plaintiff's joint judgment against King, Norfleet, and Durham upon a return of non estinventus against King only? The act of Assembly, Rev. Stat., ch. 10, sec. 3, declares that the plaintiff shall not have execution against the bail until a ca. sa. be first returned that the defendant is not to be found in his proper county, and no scire facias shall issue against (238) the bail until such ca. sa. shall have been returned non est inventus. The execution must be in the joint names of all the plaintiffs or defendants, and must in other respects pursue the judgment. 1 Ld. Ray., 244; 1 Salk., 319; 2 Lord Ray., 808. And did not the Legislature require that the return of the sheriff should be as broad as the execution beforeany of the bail of the defendants should be subjected to the plaintiff's demand? We think that the Legislature considered all the defendants in the execution as principal debtors, and the bail of all or any of the defendants as quasi sureties only. And before these sureties (the bail) should be looked to for the debt by the plaintiff in the execution he should show that he had, by a ca. sa. returned non est inventus against all the principals been unable to get his debt. In England the the law is that the ca. sa. is not intended to be executed by the sheriff; it is there required only to remain in the sheriff's office four days, which is considered to be notice to the defendants to surrender themselves, and likewise notice to the bail that if their principal do not surrender they (the bail) will be looked to for the debt. In England, after the four days, the sheriff returns non est inventus as to all the defendants in the execution, although he well knows they are all in his county. This being the law, the bail here, as there, are not to be called upon by a scirefacias to pay the judgment or surrender their principals until the plaintiff has had his ca. sa. returned non est inventus as to all the defendants in it, or put in jail those defendants in the execution who may be found by the sheriff and arrested under the ca. sa. Were not this the *Page 174 law, the plaintiff in a ca. sa. might discharge a solvent defendant and pursue the bail of an absconding defendant in the same execution, and get the debt out of him, and leave him remediless as to the solvent defendant; for we have decided in this Court that the bail of one partner who has paid the debt cannot bring assumpsit for money paid against the other partner. Ferrall v. Brickell (bail of Lowe), ante, 67, does not conflict with this case; for Hawkins, the codefendant with (239) Lowe in the ca. sa., had been in fact arrested under it, and would have been put in jail had he not discharged himself from theca. sa. by giving bond and bail under the insolvent law. The said bail under the insolvent act afterwards surrendered Hawkins in open court, and Ferrall did not then move the court to commit him to jail. Here we see that Hawkins had been discharged from the imprisonment under the ca. sa., not by Ferrall, but by force of the law (the insolvent law), and, therefore, the bail of Lowe, the other codefendant in the ca. sa., had no right to complain of the conduct of the plaintiff in the execution. But that is a very different case from the one now before us; for in law it was, as to the bail of Lowe, tantamount to Hawkins having been put to jail. But in this case Norfleet and Durham are not, by the law, taken out of the custody of the sheriff under the ca. sa., but they are by the active management of the plaintiff in the ca. sa. prevented from ever being arrested by the sheriff under that execution.
It is further urged that the sheriff, by not taking bail from the defendants in the original action, has thereby made himself special bail for all, yet that the contract by him is several, and the same as if bail bonds had been taken by the sheriff from each of the defendants with separate and distinct bail — in which case the bail of each would be answerable only for the appearance of his principal. And it is asked for what purpose shall a ca. sa. be returned as to any but the one for which the bail who is sought to be charged is answerable? If he pays the debt for his principal, he has no claim upon any of the other principals for contribution.
We acknowledge the correctness of the latter principle, but not the conclusion drawn from it. It is true, in the case put, the bail is not entitled to contribution, but his interest in the appearance of the others is not confined to that view. He has an interest that the defendants shall all be before the court. If one of them has paid the debt or has been released by the plaintiff, the payment or release will operate to the benefit of all the defendants and their respective bail; or if they (240) have not paid the money or been released, if arrested on a ca. sa. they may find means through the interference of friends, or from secret resources, to discharge it. Upon a contrary practice, the protection which the law intended for the bail may often prove entirely illusive. *Page 175 There are two defendants — one of them pays the debt; it is a private transaction between him and the plaintiff; the other is insolvent and has left the country. A ca. sa. issues against both. The one that is solvent and has paid the debt is here, and the sheriff is directed not to arrest him; the execution is returned not found as to the insolvent who has absconded — and the bail is fixed. It is asked why arrest the other defendant — he did not undertake for him. The answer is, if arrested, the fact of the payment by him would at once be made to appear, and the responsibility of the bail of the other be discharged. We believe the act of Assembly was intended for the benefit of the bail, and requires on the part of every plaintiff good faith in his efforts to recover the debt from the principals.
We think the judge erred when he instructed the jury that the evidence produced warranted them in finding the issues in favor of the plaintiff.
PER CURIAM. Venire de novo.
Cited: Jackson v. Hampton, 28 N.C. 37; s. c., 32 N.C. 580; Blue v.McDuffie, 44 N.C. 134.
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