delivered the opinion of the Court.
This was an action of debt on a hail bond. The writ was returned to the March term, 1S2Ü, and at that term, the defendant appeared, and craved oyer of the bond and condition, and demurred; the cause was continued on the demurrer to the next term, and at that term, the defendant asked and obtained, leave to surrender his principal; and an exoneratnre was entered. The action was still continued from term to term, till the October term, 1821, when the demurrer was withdrawn, and leave was given the defendant to plead. The plaintiff demurred to the plea filed, and judgment went for the defendant, which judgment was afterwards reversed, and the cause was remanded. At the succeeding term of the Circuit Court, the plaintiff took his judg. inent on the demurrer, and issued execution; on which, certain property of the defendant, and his body, were taken. A motion was made, in the progress of the suit, to set aside the proceedings for irregularity 5 another to arrest the judgment; and a third, to stay all further proceedings; neither of which, except the last, appears to have been acted on, and an order was made by the Circuit Court, to stay all further proceedings in the case. The defendant’s property was restored to him, and he, himself, discharged from arrest, for reasons appearing to he saved on the record by affidavits and exhibits. Several errors are assigned, which amount, in fact, to but one tiling, to-wit.: that the Circuit Court erred in staying all further proceedings i» *507the case. The reasons assigned for staying proceedings, are, that hy virtue of an execution issued on the judgment in the action against the principal in this bail bond, one of the principals was taken in execution, and that the olher was surrendered in discharge of bail, at the term next succeeding the term to which the writ, now under consideration was returned. It is the opinion of the Court, the defendant ought to have pleaded these matters in bar of the action. Where the bail has neglected to deliver his principal, till the return of the writ, in an action of debt, commenced on the bail bond, we are inclined to think he is without remedy, unless he can give good reason for not surrendering the principal. The Court, as all its members cannot sit in this case, will not say positively that the bail is fixed on the return .of- the writ, but it has no hesitation in saying, that there was no pretence for admitting the defendant here to surrender the principal in discharge of himself.
The judgment of the Circuit Court, which orders a stay of all the proceeding, is reversed.