#### Palmer *vs.*Merriwether.

SCIRE FACIAS. Case 158,

Appeal from the Jefferson Circuit; Pirtle, Judge.

*Bail. Scire facias. Ca. sa.*

*'Scire facias*against bail, cannot be ■maintained sutil *after*a *ta sa.*■and *that*having been abol dshed,there 'is *now*no re'•jpody against 'the bail.

October 16.

Judge Nicholas

delivered the opinion of the court.

Tins is ain appeal from a *judgment*rendered against the appellant, upon a *seire facias*issued on her acknowledgment, as special bail, made in 1824.

The case is, in all respects, like *that of Peteet*vs: Dudley, VII Monroe, 130, where it was determined that the hail wits not liable. That decision is now called in question, and we are invited to review and overrule it. This we should have great hesitation in doing, even if we entertained much greater doubts of its propriety than we do. The legislature has since provided for the *casus omissus*suggested in that opinion, and many cases were ruled in the circuits in conformity to it. When a construction has thus been given to an act of assembly by a solemn adjudication of this court, that construction should never afterwards be lightly changed. Never, except upon clear grounds and upon adequate motives of general policy. The evils likely to ensue-from such vascillation in the decisions of this court upon the construction of the statute, are much greater than would generally arise from an erroneous construction. We ought never to disturb a construction solemnly given by our predecessors years' back, except we feel morally certain not only that *507they were wrong, but that we are right in the pro-nosed substitute. Now it so happens, that we doubt the strict propriety of every construction that has been attempted to be given to the act of 1821 upon this subject. We believe a similar doubt has generally pervaded the best professional minds in the state. It must be a bold mind indeed that, ventures to suppose it has certainly arrived at the true construction of that act. There never wag one, perhaps, the true construction of which it wag more impracticable to ascertain with absolute certainty.

The form of the recognisance of bail prescribed by an act of Virginia, still in force, was the same in substance as that used in England. Memorandum “that on the day of E F undertook for C D, at the suit of A P, that in case C D should be cast in said suit, he, G D, will pay and satisfy the condemnation of the court, or render his body to prison in execution for the same, or that E F will do it for him.” See I Littell’s Laws, 482. By the net of 1810, I. Dig. 258, the form was altered to a simple acknowiegment of special bail, which was declared to. have the force of a recognisance.

According to the terms of this recognisance, and other express statutory provisions, the bail had a rigid to discharge himself by a surrender of his principal, any time before his liability was fixed.

It seems to be agreed on all hands, that the prescribed form of the recognisance is not altered by the act of 1821; that construction cannot be carried so far as to expunge a single letter of it.

A necessary enquiry to ascertaining whether bail be liable at all since the act of 1821, will, therefore, bej whether by that act. his power to take and surrender his principal to prison is taken away, and if so, the» the eifect thereby produced on his responsibility.

The act is susceptible of two plausible constructions. The one, that it abolishes imprisonment fop debt altogether, except under *mesne*process. The other, that it only takes away the use of the ca. $«, The first construction has in its aid. the title of the *508act, which is, “ to abolish imprisonment for debt7$ and an allowable interpretation of the third section, which applies it as well to cases of imprisonment accruing after, as to those which had accrued prior to its passage. That section authorizes a magistrate to discharge any one confined on civil process, without his making any surrender of Isis estate, Or taking the oath of an insolvent debtor. It is difficult to conceive a reason why a person confined subsequently to the act on process, after judgment, should not receive such a discharge, as well, as those confined before its passage. There is a reasonable presnmpr tion, from a view of the whole act, that tiie legislature intended to abolish the system of imprisonment as a means of coercion for the payment of debts, and that in taking away the *ca. sa.*it was supposed to have been done, and its only motive for allowing a defendant to he held to bail, was to prevent him from removing his property out of the state before judgment, so as to ueep it here to be operated upon by a *ji. ja.*after the judgment was obtained. It the construction suggested of the third section be the true one, it is difficult to resist the inference, that such was the general intention of the legislature. For, if a defendant was-entitled to his discharge the moment he was placed in custody, it would be idle to put him there, and it is fair to infer, that it was intended to prohibit his being placed there.

Tiie other construction, however, is not without plausible grounds in its favor. The mere words of the act are certainly not very appropriate, and scarcely adequate to the total abolition of imprisonment for uebt. The use of the *ca. sa*might be denied ; and the defendant still liable to imprisonment, by modes well known to the law. For instance, he might be taken and surrendered by his bail, or upon surrender by himself be lawfully committed and held in confinement.

If the first construction prevail, all modes of imprisonment, after judgment, are denied, and it would be illegal to take him under a bail piece, or to commit after a surrender. If the second *509should prevail, be could bo so taken

Under the first, bail, not fixed prior to the act, was discharged- For, according to the terms of the recognisance, the bail had a right to discharge himself, by a surrender of the principal, and if the law afterwards took away this power, it thereby absolved him from Ids engagement.

Under the second construction, in sue!', case the bail would not have been discharged. For it was no part of the condition of the recognisance, that the ca. sa. should be used before the bail became liable. The courts, in favor of the bail,'required thé plaintiff to use a ca. sa. before he was allowed a *scire facias*or action of debt on .the recognisance; and *ex gratia*allowed the bail to discharge himself by a surrender'of the principal, any time before the return day of the *scire facias*returned executed. But this, both by the rule of court and our statute, was only on the terms of paying the costs of the *scire fa-. cias.*When, then, the law denied to the plaintiff the use of the *ca. sa.,*it might well have been contended, that the courts should abolish their rule, and not require the issuing of a *ca. sa.*as a necessasary prerequisite to the fixing of the liability of bail.

Which of the two constructions we should adopt, if the question were open, we should be much at a loss to determine. There are many and persuasive arguments in favor of each. In such cases of doubt and uncertainty, it must ever be a source of congratulation to us, to find the responsibility of an election taken from us by our predecessors. Such is the fact here. The point was solemnly determined by this court in 1826. The first construction was then adopted, and in the case of Holland vs. Bouklin, IV Monroe, 150, bail entered into prior to the act, held to be discharged by it.

That such was the construction put upon the acf by that case, is manifest not merely from the necessity of it in order to attain the conclusion to which the court arrived, but from the following language used in the opinion. “ The argument amounts to this, that after this recognisance was acknowledged-*510upon conditions disjunctive and alternative, tbe act has liad the effect to strike out one of those conditions, *(the render of the body in execution,)*and placed it on the single condition, that the bail shall pay the money if the pricipal does not. From the premises that since the recognisance was entered into, *the law has rendered one of the conditions impossible,*the conclusion of law would be, that the obligation is discharged.”

What is the effect of this construction on the liability of bail entered into since the passage of the act, as already stated, has been determined in the ease of Peteet vs. Owsley. We percebe no sufficient reason for overruling that case.

To induce us to do so, it is insisted, that though the act totally abolished imprisonment for debt, except under *mesne*process, and took from hail the bower of surrendering the principal after judgment, 'it thereby rendered that condition of his recognisance illegal, and the only effect was to reduce the recognisance to the other and single condition of satisfying the condemnation of the court. We arc cited to authorities to shew, that if one of the conditions of a disjunctive obligation is illegal or impossible at the time of giving it, the obligation is the same as if it contained no such condition. We do not feel the force of those authorities, or the princi - pie they are cited to establish. They by no means serve to clear up the difficulty arising from two conflicting and irreconcilable laws. We cannot but feel great difficulty in determinining, that an obligation containing two conditions, both authorized and directed by law, is, nevertheless, an obligation with only one condition, because the other is against or contrary to law. Those who use the argument may convict the law, if they will, of the absurdity of authorizing and condemning an act at one and the same moment, and still attempt to extract practical meaning from it. But we cannot consent to deprive a man of the benefit of a condition in his contract expressly authorized by law, upon the argument that such condition is illegal. When it is conceded that construction cannot alter the form of the recognisance, it seems to us the question is sur*511rendered. The bail has aright to the benefit of the whole form, ami those who attempt to charge him, must find law to do it on other grounds, than that part of it is illegal.

This argument is susceptible of another answer. It is to be found in the case of Fullerton vs. Agnew Holt, 148, which was this. *Scire facias*against bail, reciting a recognisance ta’<en in the time of King William the third, wherein the condition was, that the defendant should render.his body prisoner to the marshall of the marshalsea of our *present queen;*it was urged that this condition was impossible, and, in consequence, the recognisance single. *Led. per Holt C. J.*Where the condition is underwritten or endorsed, there that only is void and the obligation single. But where the condition is part of the lien itself, if the condition be impossible, the obligation is void. The same case is reported in I Salk. 172, and is cited with approbation in Comyn’s Digest and other books.

That the legislature meant somthing is presumable. That it is our duty to ascertain its meaning, if practicable, is conceded. That it intended some liability on the part of bail is also presumable. But how, under the construction that it was intended also totally to abolish imprisonment for debt, this liability is to be ascertained, how and when it should be fixed, is as unascertainable as the quadrature of a-circle. That by disregarding the form of the recognisance, any one may fashion a new species of liability according to his own fancy, is readily-admitted. But so to fashion a new species of liability, without law for it, is denied to be within the judicial prerogative. .

Our predecessors have said, that to effectuate the intended liability against bail, it was indispensable the legislature should have altered the form of the recognisance. The legislature has acquiesced in that determination, and supplied the omission, in a way that makes the liability of bail conform to what the court had supposed to be the general intention of the act of 1821 as to the total abolition of imprisonment for debt. We feel disposed to acquiesce also, and leave this whole matter as we found it»,

*512Dissent

*Bibb,*for appellant ; *Denny,*for appellee.

Wherefore, the Chief Justice dissenting, the judgment must be reversed, with costs, and cause remanded, with directions to enter judgment on the _ *scire facias-*in favor of the defendant.

*Chief Justice*Robertson,

*dissenting from the majority of ike court, delivered his own opinion as follows:*

No peril of subjecting myself to the imputation of temerity, for dissenting from tiie reasoning and the conclusion of the opinion just delivered, can control my judgment or convince me that it is my duty to acquiesce in what I am constrained to consider as essentially erroneous. The error, if it exist, was not so impregnably established by judicial recognition as tobe entitled to the force of cow-elusive authority. The opinion in Peteet vs. Owsley, is not intangible. It was delivered by only two members of the court; its reasoning is, to my mind, not only inconclusive, but suicidal; it has not been fortified by any subsequent decision by a full court, or even by the same learned judges by whom it was pronounced; at the session of the legislature next, succeeding its promulgation, an act was *passed for*the purpose of supplying, in express and *explicit*terms, the *supposed,casus omissus,*and of *enforcing,*as I believe, the obvious intention of the statute abolishing the *ca. sa.*by re-enacting its *substance*in language that-could not be misunderstood or evaded. Hence “store decisis,” though a wise judicial maxim, when filly applied, and always entitled to much influence, does not *conclude*the question now involved, nor allow me, (entertaining the opinion I do) to bp content with the easy and irresponsible task of acquiescing in a doctrine once before announced by two of my predecessors, and which, after full and anxious deliberation, my judgment cannot approve as either reasonable or just, or consistent with the act of 182],

The peculiar attitude in which I am thus placed, may render it proper that I should state some reasons for inv own opinion.

As much of the act of 182Í as is material to the. argument, is contained in the first and second sections, and is in these words;

*513Dissent

> *“Sec.*1. All laws which authorize a *capias ad sa.tisfaciendum*to lie issued against the bodv or bodies of any debtor or debtors, shall be and the same is hereby repealed.

> “Sec 2. Hereafter no person or persons shall he arrested upon any *original*or *mesne process,*or required to give bail, unless upon affidavit being filed with the clerk of the court or justice of the peace from which process is to be issued, stating that the plaintiff or plaintiffs verily believes that the person or persons against whom such process is about, to issue, will leave this Commonwealth, or move his property out of the same, before judgment, or otherwise abscond, so that the processor the court cannot be executed, and upon such affidavit being filed, the clerk shall endorse that *bail is required,*and in what sum.” s

It does not seem to me to be difficult to understand this act, or to give to the foregoing two sections of it a practical, consistent, and *effectual*construction, so far as they can operate essentially on the point I am now considering. The first section repealed all laws authorizing a *ca sa*to issue. The second section provided, 1st, that no person should, in a civil case, be arrested on an original or *mesne*process, unless he should be required to give bail in consequence of such an affidavit as it prescribed; and, 2nd, that a party, arrested upon affidavit, should give special bail, as if there had been no statutory exemption in any case, or should be imprisoned for failing to give such bail. The two sections together show that the *capias ad satisfaciendum*was abolished, but that a party might still he arrested and held to bail on a *capias ad respondendum.*A d by the fourth section it was provided, that a person imprisoned for failing to give bail, might be liberated by giving the bail required, or by taking the insolvent’s oath.

In Peteet vs. Owsley it is decided that a *capias ad .satisfaciendum*could not be allowed since 1821, and, on that point, it seems to me that there is no room for a doubt, because the act of 1821 explicitly declared that such a capias should not, thereafter, be *514lawful, and only permitted the arrest of a debtor byy his creditor, in prescribed cases, on original or *mesne*process.

Bissíat*,

The opinion of my associates, not only reposes *aa*the supposed conclusiveness of the case of Peteet vs. Owsley, but intimates that the statute of 1821 is not ■susceptible of any satisfactory 'construction which would enable the court to ascertain the nature and ■extent of the liability of special bail, orlo determine when or how that liability mav be fixed and enfore* •ed. I admit that the language of t,he statute is not so precise and appropriate -as it might have been; but it clearly shows that tbe'legislafure intended that special bail, acknowledged pursuant to its authority, should be legally liable in some 'event and to some '■extent-; and, as already stated, it also clearly shows that a *capias ad satisfaciendum*could not. be issued against the principal debtor; nothing more is necessary, in my opinion, for any purpose in this case.

It is immaterial whether the bail might have had ■a right to surrender the principal or not, because, were it admitted that such a surrender might have -absolved the bail, still the creditor could riot have issued a *ca-. sa.*against the'debtor, and was, therefore, not required or-expected to do so. The recognisance is in these words:

> “l, Mary Palmer, do hereby acknowledge myself' *specialbail*for the within named ffm. Lynn, in the ■suit named in the within writ.” — signed, “Mary Palmer.”

Did that undertaking impose any legal liability^ If it did, when was that liability fixed, and how was it to be enforced? These are the only questions to be considered.

That a legal liability may have resulted from the ■recognisance, 1 think there can he no reason for a plausible doubt; and I am also clearly of the opinion that, *as a-necessary consequence,*a *ca. sa.*against the principal was not necessary to the existence og enforcement of that liability.

For, as it is evident that the law prohibited such a *ca. sa.*the consequence is plain that, under *the same law,*the principal could not sustain any forfei*515Sure of his right by not doing, what would have been unlawful; and consequently, it the bail was not jiable until a *ca. sa.*had been issued, he was not liahie at ail or upon any contingency. il then it can be shown that ihe recognisance imposed any legal Obligation, it will resuii tnat the plaintih was, as special oail, liable precisely as sue would nave been it there never had need any law- anthoiizmg or requiring a *ca. sa.*

Unseat,

Her contract contains no stipulation requiring *9 ca. sa.*to issue; and, as 1 will endeavor 10 snow, 110-such condition can be *implied, Out is dearly exduaed.*

That the legislature *intended*to abolish all Jaws whien *requirea,*as well as those winch *authorized,*a *Capias aa satisjacienamn,*m any case or lor *any pur-pose,*is, to my mind, almost sen-evident. The inevitable consequence would, be,, mat, in 16¿4, the date oi". me piaiatm.s undertaking, *there wa$ ho laic requiring a ca. sa. as necessary to tier kaoiiity.*

The *intention*of the legislature is obvious and in* disputable. By autnorizing a creditor to hold hie elector to bail, and even to imprison him lor failing to give it, tbe legislature intenued nothing more nor jess than that in tins way, the plamtili's demand might, as be lore, *Oe secured;*and consequently, that the surety should be *legally*responsible. It would *jaot*be reasonable or allowable to suppose that the legislature, whilst acknowledging the justice of requiring a detendant to give bail or go to jail, and whilst providing a moue lor *securing*that end, could have intended or imagined that bail, when given, should, in no event, ue liable lor his principal. The very act of requiring bail *necessarily*implies that the bad shall be respomioie. As me baii is taken «c*tordmg.lo law,*he must be bound according to, or by the *same law, m consequence oj his unaertawing.*His undertaking being iegai — his obligation must be legal. tíaeii is the mevnaoie construction of the acf of 1821.; and such must be admitted to have been the *intention*oi me legislature. As a reasonable, if not a necessary consequence, it would seem to follow, that the legislature nueimeu that, as by the act of 1821; *ca. sa.*executions were aoolisned, and as, by *516the same act, bail was allowed to be taken and held^ responsible, the legal liability, thus incurred, might be enforced without issuing a *ca. sa.*Any other supposition is inconsistent with *the declared intention*óf the legislature, and would render the second section of the act of 1821, not merely a nullity but an useless mockery of justice. It seems to me that the legislature intended, when enacting the second section of the act of 1821, that special bail taken conformably to its provisions, should be liable for the debt of the principal whenever the c?editor had failed to make it out of the principal, by resorting to all the means of coercion permitted by the law. One of the means within the creditor’s power, before the abolition of the *ca. sa*executions, was taken away by the act of 1821; anil consequently, the only effect, as it seems to me, of the abolition of the *ca, sa.*so *far*as special bail is concerned, was to render him as liable without a *ca. sa.*against his principal, as he would have been after an ineffectual return upon it before its abolition.

Disseht.

The opinion in Peleet vs. Owsley, concedes that .it was the intention of the legislature to hold special bail responsible, and *virtually*admits that such hail *is*liable, but argues — that as, before the abolition of the *ca. sa.*an execution-of *ca. sa.*against the principal was indispensable to *fiorlng*the liability of the bail, it is yet, *though abolished.,*equally necessary, and that, therefore, as a *ca. sa.*cannot issue, the intention of the legislature cannot be effectuated, nor •the undertaking of the bail enforced. This reasoning is, to my mind, at least, inconclusive, it seems to be what logicians denominate ah enthymeme — or an imperfect or delusive syllogism. It is, in effect, this — “that as the *ca. sa.*was necessary to fix the .liability of bail, when the law authorized it to issue, it is equally necessary now, when the law forbids it.” 1 cannot feel the force of this reasoning. I cannot thus acknowledge a statutory right without any remedy. 1 could not admit that the same statute, which gives a right expressly, takes away *con*structively, all remedy for enforcing it. The acknowledged and undeniable *intention*of the legislature should be sufficient answer to the reasoning in *517Peteet vs Owsley. The intention of the legislature is its *will;*and its will, when constitutional, is *law'.*If the legislature intended that a special bail should he liable without a *ca. sa.*then, *by law, he*is so lia--ble; and that such was the intention of the legislature when it enacted the act of 1821, cannot, I think, be reasonably doubted. It was not necessity that the act of 1821 should provide any remedy. It has given a legal right,-and the pre-existing remedy by *scire facias*still exi&tSj'and is appropriate.

Here I might close this dissent. But an answer more direct and perhaps satisfactory, may be given to the argument in Peteet vs. Owsley, it will be found in the reason of tlie old doctrine which required a *ca. sa.*against the principal in order to fix the liability of the hail. The liability of the bail resulted *from a breach oj an express condition*in his undertaking. As special bail was only a collateral security, the law would not subject him to liability until all the means of coercing the principal had failed; and therefore, the undertaking of the bail was, *in express terms,*that, if the creditor could not make his debt out of the principal, he (the bail) would either pay it for him or secure to the creditor the legal means of coercing him; and consequently, when the *ca. sa.*was a legal remedy, the undertaking of a special bail expressed that, if the principal should fail to pay the debt or to surrender himself in custody of tiie law, the bail would pay the debt lor him, or would surrender him to any *ca.*sa. which might be issued. There could be, therefore, no breach of the contract by- the bail, until after a *ca. sa.*had been issued against the principal, because, according to an express condition in Ins recognisauce, he had a right to discharge himself by' surrendering his principal. Cro. Ch. 481; I Lord Raym’d. 156; II Sanders, 72, a. n. 4; II Tidd’s Pra. 993; III Johnson’s Reports, 509.

Speaking oí the reason why special bail was liable as soon as *non est inventus*had been returned on a *sa. sa.*against the principal and not sooner, Jacob says, “For they (the bail) stipulate in this triple alternative, that defendant shall, if condemned in the suit,-.satisfy the plaintiff his debt and costs, or that *518lie shall surrender himself a *prisoner,*or that they will pay it for him. As, therefore, the two former, branches of the alternative are neither of them tow-plied with, the latter must immediately take place,’? VT Ja. Law Di’y, *26. A*retín n of *non est inventus*on-a *ca. su,.*against the principal, fixed the liability of. the bail,.. But although, *ex debeta justilioe,*the bail could not be entitled to an *exoneration*by a surrender of iiis principal after one *ca. sa.*had been returned, without effect, nevertheless, ex *gratia,*a practice ob-r-tamed which entitled the bail to relief by a surrender of the principal at any time befóte a return of two *nihils*on the *scire facias;*and this practice was' legalized by a statute oí this state.

It is thus manifest that the only reason why a *m. sa.*against the principal was originally necessary to fix the liability of the had, *de jure,*was because it was required by an express condition in the recognisance. The bail was not, according to an express stipulation in his contract, responsible until a *ca. sa.*,had been issued against his principal; and he had the right, expressly reserved, to surrender him in cuslody and thus exoneraté himself.

A Virginia statute of 1761, prescribed the form *oí*a recognisance by special bail. It was alternative and substantially such ns that described by Jacob. In 1810, a statute of this state dispensed with appearance bail, and changed the ancient form of recognisances by special bail. The recognisance prescribed by that statute is general, and simply ¡acknowledges that the cognisor *has become the special bail of ike defendant.*But before the.abolition of the *ca. sa.*the construction and effect of such general .recognisances were precisely the same as if they had been as formerly, expressly alternative. By merely altering tlie/om, the legislature did not change the nature or effect of the contract of special bail; and consequently, as a *ca. sa.*was still one of the legal-means oí coercing the principal debtor, the right of the bail to surrender the principal was *implied;*and he was not, *of*course, liauie until after a *ca. sa.*had. been returned.

But the *ca. sa.*had been abolished before the appellant became special bad. Her recognisance ip *519.genera!, and contains no condition requiring a *ca. sa.*to be issued, or entitling her to exoneration by the surrender of her principal. *And no such condition can be implied by law or supplied by construction.*Such an implication or construction would be contrary to the understanding of the parties and inconsistent with reason and law. When the appellant became special bail, she must be presumed to have known that no *ca. sa.*could be issued against her principal. She did not, therefore, intend tobe liable *only*in the event of that being done which shé knew was legally impossible. She knew that she would not have the right to exonerate herself by surrendering the principal; and of all this she was notified by the ■very statute which legalized the act of requiring bail, and under which she became bound. *According to that law her undertaking must be construed;*and ¡what effect did that law give to it? Certainly no other or less than that, if the creditor should fail, ■by legal means, to make his debt out of the principal, she would pay it. She, by her collateral undertaking, released her principal from imprisonment, and enabled him to remove himself and his property, if he had any, beyond the jurisdiction of the *court in*which he was sued. And if she be not responsible because the creditor has not done that which he never undertook to do, and which the law ‘.forbid, it would have been better for him that hail ■had not been required, and the statute, which authorized it was worse than a nullity. She cannot now say that the whole proceeding was mere form and parade, intended only to exhibit an idle farce; such was not the object of the law; such was not her *contract*when construed according to law or reason. Her contract was statutory, and must he regulated by the import, design, and effect of the statute: that forbid a *ca. sa. consequently her contract did not require that one should issue,*bat, if it had any obligation or ¡effect, rendered her liable without one.- The only reason why, prior to 1821, special bail was not liable until a *ca. sa.*had issued, was that, the undertaking of the bail was an either an express or an implied condition, that one should be issued. But, as •fince 1821, a *eg. sa.*execution could not be issued^ *520there-could be no such implied condition in the ob-. ligation'of bail. The only reason for the old doctrine, then, fails in this case; and I suppose that the reason ceasing, the law also ceases; and that, as a necessary consequence, the liability of the appellant was fixed when the creditor, by issuing a *fieri jadas,*which was returned “no *property,”*had done all that the law permitted him to do, or that her contract, according to its *legal*import, required him to do. T feel authorized, therefore, to conclude that her undertaking is obligatory, and consequently, that she was liable without a ca. *sa.*against her principal; for such an alternative as that implied in *the*undertaking of bail, when a *ca■ sa.*could he issued, could not have been intended by her, or implied by the law which expressly interdicted any such process. *Her recognisance entered into under the act of*1821, *cannot be construed to require any thing prohibited by that act.*

But if her undertaking had been *expressly*in the alternative, as it would have been, constructively, prior to 1821, the obligation would have been, nevertheless, valid without the issuing of a *ca. sa.-,*because the legal effect of her contract would have been simple; the superfluous stipulation for the surrender being illegal and inoperative.

It has been decided that a special bail, whose recognisance was acknowledged prior to the abolition of the *ca. sa.*and was, of course, *constructively*in the alternative, and entitled the bail to exoneration by the surrender of the principal, was released from liability by the abolition. See Holland vs. Bouldin, IV Monroe, 148. This is unquestionably sound law, if the power of the legislature to deprive bail of the right of surrendering the principal be conceded; because, *in a disjunctive contract,*all the undertakings or conditions being lawful, if one of them become impossible by operation of law or by the act of the obligee, the obligor is thereby discharged; V Coke, 22 a; Ba. ab. condition M; Com. Dig. condition D.

But the same authorities and the same reason show that *ij one of the conditions of d disjunctive or alterna•*
      *521
      *live contract be impossible ut the date of the*contract, the *obligation is precisely the same as it would, have been*i/ *tlie contract had not contained the impossible- stipulation.*See also Cro. Ele. 780; Com. Dig. condition L. 12; Ba. ab. condition 2.

If then the recognisance of the appellant had *expressly*contained an alternative condition that she might discharge herself by the surrender of her principal, as that condition was impossible at the date of her acknowledgment, the legal effect of her contract was single, to-wit: that, she was bound to pav the debt if it could not he made out of the principal bv legal means. She could not. object, that the abolition of the *ca sa.*has deprived' her of. any right, hecanse when she nndértookto he special bail, the law did not permit the surrender of her principal, and therefore, nothing has been rendered impossible bv law or bv the act of the appellee, which was legally possible at the date of her contract.

This doctrine proves that the appellant’s liability is not dpstroved iv impaired bv the abolition of the *ca. sa*in 1821. It proves that if her contract had contained an express condition for the surrender of her principal, she would have been liable without a *ca. sa.*against him; and that, therefore, even if her undertaking co’dd he *construed*as containing such a condition, she is liable although no *ca. sa.*ever was or could he issued against him But it tends clearly to show also, that her undertaking could not. by construction, contain nov such condition, and that she was,.of course, liable on the return of the *fieri facias,*even if she would not have been so liable had her contract contained such condition. -

Before the abolition of the *ca. sa.*it was generally necessary that an assignee, before he could have legal recourse to his assignor, should have issued a *ca sa.*against the obligor. This was one of the implied conditions in the contract of assignment. Has the assignee now no right, to call on his assignor, hecanse he did not issue a *ca. sa.*against the obligor since its abolition?

Whv has he such right? Because, as the *ca. sa.*has been aboBdied, he has, bv issuing a *fieri jadas,*done *522all that the law permitted him to do. iSo, although prior to 1821, special bail was not liable until after a *ca. sa.*had been issued against the principal, he is now, like the assignor, liable upon a return of no estate on a *fieri facias.*

Without amplifying more, I feel bound to conclude that the only reason given in the case of Peteet vs. Owsley, is not only inconsistent with the conclusion which was deduced from it, but is irreconcilable with the reason and law of this case.

It has been shown, I trust, that a recognisance entered into since the abolitionof the ca, *sa.*cannot be *construed*as containing any such condition for the benefit of the hail, as that he may surrender his principal; and that, therefore, the issuing of a *ca. sa.*could not be necessary to the liability of the bail. And it has also been shown that if the recognisance had contained any such condition, the bail would still be liable without a *ca. sa.*The consequence is that nothing is contained in or omitted by the act of 1821, which can make the liability of the appellant depend on the issuing of a *ca. sa.*against her principal. This conclusion seems to me to accord with the intention of the legislature, with reason, and with ■authority; and thus the second section of the act of 1821 would be not a dead letter, but would have a practical, consistent, and effecttml operation; and thus a beneficial act of the legislature would not be ■nullified, but would be permitted to operate according to its declared object and design. I concur with flie court below.

Wherefore, as I cannot, for the foregoing reasons, ^concur in recognising Peteet vs. Owsley as a conclusive authority, I have deemed it my duty to dissent from it, how much soever I may respect the distinguished jurists who decided it, or my associates, who acquiesce in its authority.

But, whatever I may think, I shall hereafter feel it my duty to consider the question here discussed): as now settled, finally and conclusively.