Majority
p. 56Ballard and Parkman, manucaptors of Chapman, ads. Kibbe and Ludlow.
Headnote
THIS was an application by bail to surrender their' principal, on the following case:In April term, 1797, ca. sa. against the principal was returned non est. On which, the plaintiffs issued a cap. ad resp. against the bail jointly, on their recognizance. This writ was delivered to the sheriff of
p. 57
Herkimer, or his deputy, early in April vacation, being returnable the last Tuesday of July then next.
On the 7th of July, the deputy having possession of the writ, but not in his pocket, met Parkman, one of the bail, and informed him of the writ; on which Parkman.promised to come to the house of the deputy and indorse his appearance thereon before the return day. He accordingly came and indorsed his ap*pearance, but at what time precisely; Cheeseborough, the deputy, who is the witness, does not recollect. By the affidavit of Parkman-himself, it appears to have been two days after the return day of the urit. The writ was then returned, with such indorsement, but without any return indorsed by the sheriff himself.
In July vacation, the plaintiff issued an al. cap. against Ballard, to answer simul cum Parkman, returnable in October term, which having been returned “ non est the plaintiffs issued a testatum against Ballard alone, returnable in January, 1798, directed to the sheriff of Onondaga, who took him.
August 28th, 1797, the defendant’s attorney had delivered the plaintiff’s attorney a writing intended as a plea in abatement, praying that for want of an official return, as well as on account of such irregular service of the writ on Parkman, the plaintiff’s bill might be quashed.
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' February 10th, 1798, the plaintiff’s attorney delivered a copy of the declaration filed, against the bail jointly.
February 13th, 1798. the plaintiff’s attorney received a plea in chief nil debet, in behalf of Ballard alone ; and at the same time another writing, intended as a plea in abatement, in behalf of Parkman separately, and so entitled, and grounded upon the before mentioned objection; viz. the want of official return.
The proceedings respecting the surrender were as follows r
January 13th, 1798, three days before the term, the sheriff of Herkimer signed an acknowledgment, that the principal was in his custody, on a surrender by Parkman, in behalf of himself and Ballard.
January 27th, on application of Ballard in behalf of himself and Parkman, his honour Judge Benson made an order for a commitment,
March 5th, the sheriff signed a farther acknowledgment, that the principal was still remaining in his custody when the committitur came to his hands.
March 20th, Judge Benson made an order for the plaintiffs to appear and show cause why an exoneretur should not be entered. They appeared accordingly, and the case was adjourned over to be argued and determined in open court.
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On this case the following questions were raised :
1. Are the defendants now too late in their application ?
2. Can one bail be discharged alone when the application is for the discharge of both ?
3. Will the discharge of one bail operate as a discharge of all ? and if one is fixed, will not the other be so likewise ?
Curia ad. vult,
The surrender by Ballard is good as to both. If a plaintiff will elect to sue special bail jointly, he who is first taken shall have time to surrender till the last is taken also, and till the time allowed him (the last) for surrendering is expired. If he sues them separately, then each may be separately fixed; or one may be fixed, and the other may after-wards surrender the principal, and be discharged. So that, in fact, the plaintiff may have the body of the defendant in custody, and at the same time go on with a suit against the other bail which has been fixed. He cannot, however, have more than one satisfaction.
Let the defendants take the effect of their motion,, on payment of costs.