delivered the opinion 'of the Court.
This is a motion to amerce the marshal to the full amount of damages and costs, for not bringing in the body of the defendant, according to the tenor of his return upon the capias ad responden-dum.
The action is for covenant broken, brought upon a charter-party, by which the defendant covenanted to pay to the plaintiffs $425 a month for the use of a vessel. At the time of the arrest of the defendant, no declaration was filed, nor any affidavit of debt, nor even an indorsement on the writ of the amount claimed; nor did the amount of damages claimed by the plaintiffs appear in the writ. The marshal took a bail-bond, in the penalty of $4,000, which he offered to assign to the plaintiffs before this motion was made.
By the law of Maryland, 1794, e. 54, § 2, it is enacted, “ that where any sheriff or coroner, being called upon, by order of the General Court, or any county court, to bring before them any defendant or defendants before arrested by such sheriff or coroner, upon any original writ or mesne process, according to the tenor of his return, the court, on motion, shall cause such sheriff or coroner to be amerced to the amount of the debt or damages, and costs due from the defendant or defendants, to be ascertained by the oath of the plaintiff or plaintiffs, his, her, or their agent, factor, or attorney, and such other proof as the court may require, and shall and may enter judgment nisi, the second day of the next term thereafter, for the' amount of the amercement aforesaid, in the name of the plaintiff or plaintiffs, and for his or their use, against such sheriff or coroner, which judgment shall be as valid and effectual as any judgment rendered upon_,any verdict of a jury.”
This act is peremptory, that the c(#6rt shall cause the sheriff to be amerced to the amount of damages and costs.
But it is contended, on the part of the marshal, that the Act of Maryland, 1715, c. 46, § 3, ought to be extended to actions of covenant, because they are within the same mischief.
By that section it is enacted, “ that in all actions of trespass on the case, where damages are laid to be above 4,000 pounds of *589tobacco, if no declaration be sent with the writ expressing the true cause of action, the sheriff shall not require a bail-bond exceeding the sum of 8000 pounds of tobacco, although the damages be marked on the writ for any greater sum whatsoever.”
By the English statute of 23 H. 6, c. 10, sheriffs and all their ministers may deliver to bail or main-prize, upon sufficient surety, all persons arrested by writ, bill, or warrant in any personal action. Of the sufficiency of that surety, the sheriff was the judge.
By the statute of 13 Car. 2, 2, the bail for appearance shall not be bound in a penalty above £40, if the cause of action be not particularly expressed. Before that statute it might be in any sum the sheriff pleased. Day’s Com. Dig. Bail, 30, K. 4.
But it appears by the eases cited by the counsel of the marshal, from 4 Harris & M’Henry’s Rep. 5 and 159, that neither the statute of 13 Car. 2, 2, nor that of 12 Geo. 1, 23, nor the subsequent statutes of George, were ever considered in force, or prac-tised upon in Maryland.
The present question, therefore, depends upon the statute of 23 H. 6, c. 10, and the Maryland Acts of 1715, c. 46, § 3, and 1794, c. 54, § 2.
By the statute of 23 H. 6, c. 10, if the sheriff return a cepi corpus, or reddidit se, he shall have his prisoner at the return day, as before the act. And if he has not, he shall be apiereed by the Court, upon a rule given to bring in the body. Compl. Att’y, 311; Etheric v. Cowper, 1 Salk. 99; Com. Dig. Bail, K. 5.
The first amercement was only 40s., but issues were from time to time subsequently increased, until they amounted to the debt or damages, and costs claimed by the plaintiff.
This practice under the statute prevailed in Maryland before the year 1794, when the act was passed, making the amercement a direct remedy for the plaintiff, and authorizing the Court to amerce the sheriff to the full amount of debt or damages and costs, in the first instance.
We are not informed of any case in Maryland, in which it has been decided that the statute of 1715, e. 46, § 3, comprehends actions of covenant, as well'as actions of trespass on the case. The preamble of that section shows that the evil intended to be ¿remedied, was the holding to bail in spiteful and malicious actions of trespass on the case, in which the plaintiffs laid their damages very high. The same cause of complaint was not very likely to exist in actions of covenant, because they must be brought upon the contract of the party, and it is therefore not probable that the legislature intended to extend the remedy to such actions. It is evident from that statute itself, that before that statute the sheriff *590was bound to take sufficient bail for the appearance of the defend» ant in all cases; and that he was the judge of its sufficiency. The Act of 1794, c. 54, § 2, makes no exception in favor of actions of covenant, or any other action, and is peremptory upon the Court.
We think, therefore, that the marshal must be amerced to the amount of the damages due from the defendant to the plaintiffs.
ThRUSton, J., not having heard the argument, gave no opinion.