The theory of the defendants’ answer is that no breach of the undertaking can be alleged, because the record of judgment in the action against Sylvester Levy does not show that the action was one in which a personal *38execution could issue, and that hence Levy was not bound to hold himself amenable to the ca. sa. which was issued and returned non est inventus.
Without deciding this precise question, applicable in a case where the debtor is himself interposing the objection, we think the demurrer must be sustained on the ground that sureties of bail, can not raise the question of the liability of their principal to arrest. They are estopped by their undertaking which imports that liability, and is in effect an acknowledgment of the bailable character of the action (24 Wend. 175; 8 id. 481—2; Ld. Raym. 1535). The principle upon which this doctrine is founded is, that exemption from imprisonment in actions upon contract under the statute is a personal privilege, which belongs to the debtor alone (see 19 Wend. 121, and cases above cited). That privilege may be waived by submitting to an arrest upon an order, and procuring bail. If waived the sureties to the recognizance can not be heard to interpose the debtor’s personal exemption, or that the action was one in which the debtor might have claimed such exemption and procured a vacatur of the order of arrest. The law will presume against the sureties that the action against the debtor was in its nature bailable, or became so by waiver on the part of the debtor. The only mode of avoiding liability when a ca. sa. is returned non est, is for the sureties to surrender their principal under § 191 of the Code.
In this view of the case, it is not necessary to refer to the several authorities cited by the defendants’ counsel, upon the question whether the judgment roll must, in terms, show that the action was one in which an order of arrest might have been made under the Code, in order to authorize the issuing a personal execution. The rights or remedies of the debtor are not now the subject of inquiry. In this case he was not a party to the undertaking, nor is he a defendant in this action. I will, however, allude to the case of Gridley agt. McCumber (5 Howard, 414), cited upon the argument, and affirmed upon appeal at general term in this district.
It was not affirmed upon any ground taken by the justice in special term in his opinion published in 5 Howard, supra, which can affect this case. It was affirmed upon the sole ground that *39it appeared clearly that the action was brought to recover an indebtedness, concerning a portion of which there was no claim or pretence of fraud; and as to which the debtor was not liable to arrest or imprisonment. It was held, therefore, at general term that although the debtor had omitted to vacate the order of arrest, still he might move to rescind the ca. sa. for the reason that it was improperly issued. The question as to sureties did not arise.
The Code, I think, has made no change in the law to the liability of sureties. It points out the mode in which the debtor may obtain his discharge from arrest, and if bail is put in, the mode of exonerating the sureties. This is the extent of the change of the practice in this respect, the law affecting the responsibility of sureties after return of non est upon ca. sa. remains as formerly.
The demurrer, therefore, must be sustained, with leave to the defendants to amend their answer on payment of costs.