At the time of entering judgment in the action, against Wildey, he was in the actual custody of the sheriff, under the order of arrest; and as the execution against his person, was not issued, until more than seven months after the entry of judgment, and after the intervening of several terms of the court, it is Claimed, that an action does not lie against the bail.
The provision of the statute (2 R. S., 556, § 36), is, that where a defendant at the time judgment shall be entered against him, shall be in the custody of the sheriff upon process in the suit, the plaintiff shall charge such defendant in execution, within three months after the last day of the next following term. And if he neglect so to do (§ 37), such defendant may be discharged from custody by a supersedeas and after being so discharged, he shall not be liable to be arrested upon any execution upon the judgment.
In this case, no supersedeas was obtained from the court discharging the defendant, but a month after judgment "was entered he gave bail and was discharged.
The engagement of the defendants who signed the under taking in suit, was, that the defendant should, at all times, render himself amenable to the process of the court, &c. And a provision of the Code exonerates bail, by the legal *250discharge of the principal from the obligation to render himself amenable to process (Code § 191). f
The question then arises, could the defendant be arrested on execution upon the judgment ? If he could not be, then the bail are discharged.
. The section of the Revised Statutes, to which I have referred, seems to require in all cases a supersedeas to be allowed by a judge of the court, as the means of procuring a discharge, and it would seem to be only after such a discharge, that the defendant is exempted from arrest upon execution. The defendant in the judgment was discharged from the arrest by giving bail; and when the three months, after the end of the next term, following the entry of judgment, had expired, he was no longer in the custody of the sheriff, and the provision of the statute could, probably, have no application, and a sepersedeas would not be granted. The office of that writ is to stay proceedings at law, so that no further action can be taken upon the judgment; or, as declared by the statute, rendering the defendant no longer liable to arrest upon it. .
The purpose of the statute is, to enable an imprisoned debtor to avail himself of the provisions of the statute concerning voluntary assignments by a debtor imprisoned on execution in civil cases (2 R. S., 31), whereby he may be discharged from imprisonment, by compelling the creditor, within a fixed term, to sue out an execution against the person of his debtor; or if he fail to do so, to have his right taken away by a supersedeas, at the instance of the debtor.
It is clear, however, that the defendant must be in the actual custody of the sheriff, under process in the action, at the time judgment is rendered. And, I think, it is also clear, that he must be, and remain in such actual custody, until the expiration of the time limited for charging him in execution.
Indeed, if he be not in custody at that time, I do not see how the court could relieve him under the statute, which *251in that event would be satisfied by his mere custody at the moment judgment was entered, although released on bail immediately afterwards. Such, I understand, to be the construction of the statute in Wells agt. Jones, (2 Abb., 20), where the court ; say, the defendant being at large on bail, “ the only thing he could do was to be surrendered by his bail, into actual custody, and then apply for a supersedeas after the proper time had elapsed.”
It seems to nie, therefore, that the defendant could not have had a supersedeas after he was discharged on bail, unless he had been first surrendered by his bail, and then had remained in custody the proper time.
But, however, that may be, there cannot, I think, be a doubt, that until discharged from custody by a supersedeas, the defendant remained liable to be arrested upon an execution upon the judgment. Such a discharge would have exonerated his person from arrest, and relieved his bail, and might have been set up as a defense to the action against them. But it will not do for the bail to merely show a state of facts which might have procured a supersedeas. Nothing short of a supersedeas actually obtained, will exonerate the defendant or his bail. The defendant not having obtained such supersedeas, his bail was bound to render him amenable to the process of the court. The execution against his person was properly issued, and upon its beings returned not found, the bail are liable. The 288th section of the Code as amended in 1870, may be regarded as a substitute for the section in the Revised Statutes. But it does not make any essential change nor aid the defendants even if it could be applied to this case.
A careful examination of the statute has changed my first impressions, which were favorable to the defendants.
The execpetions must be sustained, the order dismissing •the complaint set aside, and a new trial granted with costs to the plaintiff, to abide the event.
. Spencer, J. concurred.