delivered the opinion of the Court. A scire facias against bail is a new action, and not a continuation of the original action of the plaintiff against the principal. 6 Dane’s Abr. 463, and cases cited. “ It is a distinct action, but is always a judicial writ.” A release of all actions may be pleaded by the defendant in bar to scire facias. Lit. § 505, Co. Litt. 290 b. The bail bond here is not a part of the record, as the recognisance entered into by the bail is considered in England. The remedy for the plaintiff, is by scire facias under the St. 1784, c. 10 ; and an action of debt will not be upon the bail bond. Crane v. Keating, 13 Pick. 339 The statute remedy is much more favorable to the jail, than an action of debt at the common law, and is a substitute for the latter, and not a cumulative remedy.
The bail are liable jointly and severally. But if one of them should die before the purchase of the writ of sc ire facias, the action should be commenced against the survivor, or against *518the executor or administrator of the deceased, and not jointly against the survivor and the executor or administrator of the deceased. For if they were joined there could be no joint judgment against them, for the survivor would be liab e cle bonis propriis, and the other, de bonis testatoris. We all think that there is therefore a misjoinder.
The remaining question is, whether the plaintiff may be permitted to strike out the name of Earle, and proceed against the executors of Leach. We have already said that the plaintiff might have sued the survivor, or the executors of the deceased, the undertaking of the bail being several as well as joint. In Rehoboth v. Hunt, 1 Pick. 228, where two towns sued as tenants in common, this Court thought they would authorize the name of one town to be struck out, and permit the other to go on alone, if it should appear that the action could be maintained by one town alone. In Colcord v. Swan, 7 Pick. 291, it was held, that in an action against husband and wife the plaintiff might strike out the name of the wife, and proceed against the husband alone. S. P. held in Parsons v. Plaisted, 13 Mass. R. 189. And in the trial of the case of Brewster v. Hobart, 15 Pick. 302, the Chief Justice permitted the plaintiff to amend, by striking out one of the defendants ; which was approved by the judges upon his statement of the case to them.
In Noke v. Ingham, 1 Wils. 89, it was held that in assumpsit against two persons who sever in pleading, a nolle prosequi might be entered as to one, and that it would not discharge the other who pleaded bankruptcy. The court thought “ it was exactly the same as where an action is joint and several.” But even in joint actions, where the defendants sever in their pleas, and one (for example) pleads bankruptcy, which would be a personal discharge, the action may go on against the other, who would be liable by St. 10 Anne, c. 5, to pay the whole debt. Such was the case cited from 1 Wilson, 89.
But if the contract were upon its face apparently joint, and one of the defendants should plead infancy and avoid it, this Court has held that the plaintiff might be permitted to enter a nolle prosequi against the infant and proceed against the party of full age. Woodward v. Newhall, 1 Pick. 500.
*519That action was rightly commenced. The infant might waive his privilege, or plead it. If he pleaded his infancy, the contract became the sole undertaking of the other defendant. And in such a case in 1819, Tappan v. Abbot, cited in 1 Pick. 500, this Court held that the plaintiff might enter a nolle prosequi against the infant, and proceed against the other defendant. And see Vin. Abr. Actions, (D. d.) pl. 8.
It is the opinion of the whole Court, that the plaintiff may discontinue his action against Earle, upon paying him costs, and that the plaintiff may proceed against the defendants, who are the executors of Leach, as upon the several obligation of Leach, and may amend his writ and declaration accordingly.