The Opinion of the Court was delivered by
Caton, J.*The only question presented for the consideration of the Court in this case is, whether the surety in a bail bond can surrender his principal on or after the return day of the process sued out against the bail.
At common law, the delivering of the defendant to bail being a matter of record, the party was either entitled to a scire facias, or he might bring debt, and although, upon the return of the capias with-ñora est inventus, the recognizance was forfeited and the right of action was complete; yet, in view of the hardship on the bail, the Courts adopted rules by which the principal might be surrendered afterwards. In case the plaintiff proceeded by sci. fa., the principal might be surrendered on or before the return day of the second sci. fa. where two nihils were returned, or on or before the return day of the first sci. fa. where it was served, and the bail thereby discharged. Where the plaintiff proceeded by action of debt, the principal might be surrendered in open Court, within eight days after the return day of the process against the bail. 1 Bac. Abr. 342.
This discretionary power, however, has now been taken from the Courts by the legislature, and the whole matter settled by the law, as found in section five, chapter fourteen, of the Revised Statutes, upon the true construction of which the validity of these pleas depend. That section provides, that “ it shall be lawful for the defendant in any action in any Court of record, when bail shall have been given as aforesaid, to surrender himself, or for his bail to surrender him, at any time before the return day of the process which may have been sued out against him as bail, to the Court in which the suit may be pending during the sitting thereof, or in vacation, to the sheriff of the county in which process was served.” At the first reading of this statute, it would seem to be almost unintelligible, or at least somewhat inconsistent, in view of our Practice Act, which provides that all original process shall be returnable on the first day of the term, so that if the principal be surrendered during the sitting of the Court in which the suit may be pending against the bail, it must be on or before the return day of the process against the bail. As such a reading of the law would be entirely inconsistent, we must look for some other meaning. The whole difficulty, however, consists in determining what the legislature meant by the terms “action” and “suit,” as found in the passage quoted. If, in the construction, wre apply either of those terms to the proceeding against the bail, we are utterly unable to give it any sensible construction; if, however, by those words we are to understand the original action against the principal, the whole passage becomes plain and intelligible. Thus, in any action in which the defendant is held to bail, the right is secured to the principal to surrender himself, or for the bail to surrender him, to the Court in which the suit is pending, in term time, or to the sheriff of the county in which the suit is pending, in vacation, at any time before the return day of the process sued out against the bail. This construction of the statute is rendered more apparent by a transposition of the passage quoted thus: “ It shall be lawful for the defendant in any action in any Court of record, when bail shall have been given as aforesaid, to surrender himself, or for his bail to surrender him, to the Court in which the suit may be pending, during the sitting thereof, or, in vacation, to the sheriff of the county in which the process was served, at any time before the return day of the process which may be sued out against him as bail.” This, we think, is the true construction of the Statute, and, consequently, the surrender of the principal after the return day of the process against the bail, did not exonerate him, and consequently, the pleas demurred to, stating that fact, present no defence to the action, and the demurrer was properly sustained.
The judgment of the Circuit Court is affirmed with costs.*
Judgment affirmed.
Justice Young took no part in the decision of this case.
A petition for a re-hearing was filed in this ease, and denied.