#### Higginbotham v. Browns.*

Argued February 3d, 6th, and 7th, 1815.

«, Pleading and Practice - Two Defendants Joint Plea— Demurrer — “Defendant,”—In a suit against two defendants, the process was served on one only; a plea was filed, appearing, on its face, tó be the joint plea of both; to which the plaintiff demurred; describing it as "the said plea of the said defendant:” the transcript of the record stated "that the defendants by counsel filed the following joinder, to wit, and the said defendant, for that he hath sufficient matter in law to bar the plaintiffs from having their said action against him, &c. prays judgment, &c.” Itwas determined, that the word "defendant” in the demurrer did not restrict it to the plea of one defendant only; and that the j oinder was by both defendants.

See Chinn v. Heale, 1 Munf. 63; and Freelands v. Royall, 2 H. *&*M. 575.

2. Bail — Discharge of — Two Defendants. — If bail be bound in a recognizance for two defendants; a surrender after judgment of one of them, in due form of law, a discharge of that one. from the custody of the sheriff, by the plaintiff’s written order, is no satisfaction of the judgment, nor discharge of the bail; the plaintiff having never charged him in execution.

3. Same — Surrender and Discharge of Defendant — No Bar to Ca. Sa. — A surrender of a defendant by his bail, either before or after judgment, and his discharge from custody, without being charged in execution, is no bar to a ca. sa. against him, whether such discharge from custody was by the plaintiff’s order or not.

A Scire facias was issued from the clerk’s office of Albemarle County Court, in favour of the surviving partners of M’Credie, Higginbotham and Company, against Bezaleel Brown and Benajah Brown, jr. special bail for William T. Henderson and Matthew Henderson ; to recover of the said bail the amount of a judgment obtained by the said company against their principals. The sheriff’s return was “February 5th, 1808, executed on Bezaleel Brown; Benajah Brown no inhabitant.” A common order was thereupon entered against the defendant Bazaleel; and another scire facias awarded against Benajah Brown ; but whether it was *issued, or not, does not appear. At May term, 1808, the office judgment was set aside on the motion of Bazaleel Brown ; and he pleaded a special plea, “that the plaintiffs ought not to have execution against him for the debt in the scire facias mentioned, because, hesaith, the same Matthew Henderson mentioned in the scire facias was by him delivered up to the sheriff of Albemarle County at the suit of the plaintiffs ; and that they, the plaintiffs, did then and there release and discharge the said Matthew Henderson from the custody of the sheriff; and this he is ready to verify ;” and “the plaintiff replied generally.” On the 8th of August, 1810, “the defendant Bazaleel Brown, by leave of the court, withdrew his former plea; and thereupon the following special plea was filed ; to wit, The defendants come and defend, &c. and say, that the plaintiffs ought not to have or maintain their action aforesaid, nor ought they to be charged as bail aforesaid, because they say they entered into the recognizance set forth in the scire facias, as bail for a certain William T. Henderson and Matthew Henderson, joint obligors in a bond to M’Credie, Higginbotham, & Co., upon which the judgment was recovered, upon which it is attempted to charge the defendants as bail; that Matthew Henderson, one of the obligors as aforesaid, was delivered up by his bail, in due form of law, after judgment in the case aforesaid was rendered ; and was in actual custody of the sheriff; and, whilst the said Matthew was in actual custody as aforesaid, the said plaintiffs, by their attorney, duly authorized for that purpose, discharged the said Matthew from the custody of the sheriff, by a written order, the substance of which is as follows: “As agent for M’Credie, Higginbotham, & Company, and by direction of David Higginbotham, one of the firm, I do consent, that Matthew Henderson, who has been delivered up by his special bail to the sheriff at their suit, may be discharged from custody. D. Carr, 15th July, 1807. And the defendants aver, that the said suit, in which the said Matthew was delivered up by his bail, is the same suit in which the judgment was rendered, with which they are now *attempted to be charged as bail, and no other or different; and this they are readv to verify, &c.”(1)

To this plea the plaintiff demurred generally ; heading his demurrer with the words “Higginbotham & Co. v. Brown’s scire facias,” and describing the plea as “the said plea of the said defendants;” “to which demurrer the defendants, by their counsel, filed the following joinder, to wit: And the said defendant, for that he hath sufficient matter in law to bar the plaintiffs from having their said action against him, &c. prays judgment, &c.”

On argument, the court sustained the demurrer, and rendered judgment, “that the plaintiffs have execution against the said defendants;” “from which judgment the defendants, by their attorney, prayed an appeal to the Superior Court of law,” where it was reversed, on the ground, “that the defendants had pleaded jointly, a demurrer was filed to the plea of one of the defendants, that one defendant joined in demurrer, and the judgment was against both.” The cause was therefore ordered to be remanded to the County Court for farther proceedings.

From this judgment of reversal, an appeal was taken to the court of appeals.

Williams for the appellant.

The record states that “the defendants, by their attorney, filed the joinder in demurrer ; and, although” it says afterwards, “the defendant,” this must be considered a clerical mistake, as in Mackey v. Fuqua, 3 Call, 19.

The only question in the cause is, whether, upon the pleadings, the law is for the appellant ?

The undertaking in the recognizance was *245for delivering up both the Hendersons. The plea is, only, that one was surrendered. *This is bad on general demurrer, (a) Where a plea professes to answer the whole declaration, and exhibits a bar to part only, it is bad. The law requires a complete discharge of the recognizance, which could not be accomplished by surrendering only one of the defendants, (b) And the plaintiff’s suffering the defendant, who was in custody, to be discharged by the sheriff, did not discharge the judgment.

Wickham for the appellees.

There was unquestionably a plea put in by both the defendants jointly. The demurrer speaks of a plea by the defendant, in the singular number. The joinder in demurrer is by one defendant only. The words “he” and “him,” and the whole context, prove this. These pleadings were acts of the attornies in court; not of the clerk. In Mackey v. Fuqua, it was altogether a clerical error.

2. Mr. Williams says the surrender of one defendant was no discharge of the recognizance. But we contend that the discharge of one was a discharge of both, and rendered the surrender of the other by the bail unnecessary. In this case, one of the Hendersons was surrendered by the bail, and not charged in execution : but, if he had been charged in execution, this subsequent discharge would have operated as a release to the other, (c) It may be said, that, as he was not charged in execution, his discharge by the plaintiff’s attorney will not have that effect. But by virtue of the act of assembly, (d) the bail was discharged immediately upon the surrender. And I contend that a discharge of the defendant from custody, after judgment, is a release of all right to sue out any execution against him.(e) At all events, it is a release of any right to take his body. The act of assembly should be strictly construed in favour of liberty. It authorizes the plaintiff, where he has been merely passive, in not charging the defendant in execution, within twenty days, to sue out any legal execution afterwards ; but it does not apply to a case where the plaintiff, or his attorney, has actually discharged the defendant. Both the defendants must stand on *the same footing, and claim equal justice. Where the plaintiff has made his election not to hold one of them in custody, he cannot take or accept the body of the other ; neither can he, in any case, separate the fate of the defendants by his own act. The discharge of one of them, therefore, operates in favour of the bail.

3. The scire facias in this case is obviously illegal and void, being in behalf of William Brown and David Higginbotham, surviving partners of M’Credie, Higginbotham & Company, without mentioning the names of the partners of whom the company consisted.(f) This is an action upon a recognizance. If a recognizance was given to “the executors of A. B.” without setting forth their names, it would be void ; and that now in question is equally defective.

The court will go back to the first error in the proceeding ; and, since the scire facias is defective, it must be quashed. It is also faulty in not stating who were the partners at the time of the judgment, and who had died. It states the consequence or inference from facts, instead of the facts themselves, as it ought to have done, according to the forms of pleading, which are good evidence of the law.(g)

4. The recognizance does not appear to have followed the law. (h) It is described in the scire facias as binding the goods and chattels of the bail, without saying any thing of their lands and tenements, which ought also to have been bound. Such is the form, expressly, in England ;(i) and the effect in this country is the same, where the form prescribed by the act of assembly is pursued. In both the forms, too, there is a stipulation, that, if the defendant do not surrender his body in execution, the bail will do it for ■ him: and there is no such stipulation here. (1)

*Wirt in reply.

The first objection is, that the issue made upon the demurrer is by one defendant only, and the judgment against both. But, I answer, the plea demurred to is the joint plea of both defendants ; both relying on the same matter of defence. The caption of the demurrer is as to both, although the body of it uses the singular number. The plea being one, the demurrer, going to the matter of the plea, is indivisible in its application to the defendants : — it cannot dispose of the defence as to one, without disposing of it as to the other. If the defendants had severed in their pleas, there would have been some ground for the opinion of the court below, because it would then have been uncertain which plea was adjudged insufficient : but the plea being one and the same, and the matter of defence one and identical, the demurrer connot try the sufficiency of that defence as to one, without trying it also as to the other. For, if the same matter be adjudged insufficient to avail one defendant it must be equally insufficint to avail the other. The judgment upon the demurrer *246therefore, must of necessity affect both defendants equally, and rightfully included them.

The defendants, too, have waived this informality by their joinder. The entry is, that the “defendants,” by their counsel, filed the following joinder. It is true, the joinder then proceeds in the singular number ; but this is the act of the defendants themselves. The joinder being filed by them both, is effectual as to both, (a)

II. The second position of Mr. Wick-ham is, that the discharge *of the one defendant, who was surrendered by the bail, was a discharge of the whole judgment, and, of course, of the bail.

The authorities cited under this head establish the principle, that, on a joint judgment against two, if the plaintiff take one in execution and discharge him, it is a satisfaction of the judgment. And, if this was a discharge from execution, the cases apply, and the cause is decided: — if not, they are inapplicable, and do not affect the cause.

In this case, there was no discharge from execution, unless the defendant was in execution by the mere render of his bail; for nothing else was done to put him so. But the render of a defendant by his bail does not put him in execution ; 1st, because, after the render, our act of assembly requires him to be charged in execution by the plaintiff, before he can be considered as being in execution, which would be idle if the mere render had that effect: — 2dly, because, if the defendant were in execution by the mere render, neither the court nor sheriff would have the power to discharge him : for, once in execution at the plaintiff’s suit, it will be admitted as clear law, that only the plaintiff or the act of God could discharge him : — but the act of assembly gives both the court and sheriff, after twenty days, the power of discharging him from custody, without the authority of the plaintiff, and merely on the ground of his not being charged in execution.

Again ; if the surrender by the bail has the effect of putting the defendant in execution, it is in the power of the bail to abridge the plaintiff’s right of electing what execution he will take : — for, the body once taken in execution, the plaintiff has gotten his whole satisfaction, and cannot resort either to the lands or goods of the defendant. (b) Now, there is certainly nothing in the nature of the contract between the plaintiff and the bail, which gives the latter the right of dictating the satisfaction which the former shall take. If so, bail would be a mischief, instead of a benefit.

Besides ; — if the defendant was in execution, a discharge ''Therefrom, with the knowledge and tacit permission of the plaintiff, (without any actual or written discharge,) would amount to a satisfaction of the debt, and could never afterwards be touched either in his person or property, (c) But a discharge on a surrender will not have the effect of exempting even his body from execution :(d) — “for it is, (says Hobart,) but a forbearing for the time to receive him upon his own offer ; and not a renouncing or releasing of his own act of execution, when he shall see cause.” It is said, indeed, in Barnes 376, that if a defendant, after judgment, be superseded for want of being charged in execution, his person cannot be afterwards taken in execution. But this was a mere obiter dictum, and is confronted by Comyns and Hobart, if attempted to be established as a general principle. It is not said, that the discharge of one defendant on supersedeas, for want of being charged, will exempt a co-defendant ; — and, Conclusively, the authority admits, that the goods and lands of such defendant, so discharged, are still liable, which they would not be if he had been in execution and discharged therefrom. But, on this subject, our act of assembly removes all difficulty, by expressly declaring, that where, upon the surrender, the defendant is discharged from custody with the knowledge and permission of the plaintiff, in consequence of his failing to charge him in execution, he shallstill be liable to any execution which the plaintiff may elect to sue out.

Ror another reason, the defendant is not in execution upon the surrender by the bail. It is, that execution is the act of the plaintiff, and cannot be without his authority. The plaintiff has the right to elect what satisfaction he will have for his judgment ; and, having made his election, he is bound by it. But the act of the bail is not the act of the plaintiff; — and it would be strange to bind the plaintiff by an election, made by another, without his privity and consent. *0*

The very reason of the principle, that the discharge of one defendant from execution is a discharge of all the rest, furnishes a farther argument to shew, that the mere render *by the bail does not put the defendant in execution. The reason assigned by Mr. Wickham is not the true one; viz. that the law will not suffer the plaintiff to press harder on one defendant than on another. If this were true, the law would not permit the plaintiff to confine one defendant, and leave the rest at large; — which it will do. Nor is it thereason, that the taking of one defendant is a satisfaction of the debt; for, if so, the plaintiff, haying taken one, could not take the rest: — but he may take them all in succession, — or he may take part, and demand the rest from the bail, (e) The true reason is to be found in the unity of the judgment, and the unity of satisfaction to which the plaintiff is entitled ; — in his being bound by the election of the satisfaction, which he has made ; — and the confession of satisfaction, which the law infers from the discharge of the man whom he has 'himself taken and imprisoned. But this reason is wholly inapplicable to the case of a man whom he has not himself taken and imprisoned; — and, the reason of the principle not existing, the principle itself will not apply, (f)

The result is, that the defendant was not in execution by the mere render of the bail: he was in custody of the sheriff, but not in *247execution: and since he was not in execution, the consent to discharge in this case was not a discharge from execution. The act of the plaintiff’s agent was therefore, in effect, a mere election not to charge in execution. This will be apparent, if we consider why the defendant is to be cither charged in execution, or discharged, at once, if surrendered in court; and why he may remain twenty days in custody, if surrendered to the sheriff in pais. In the first instance, the plaintiff is in court, conusant of the surrender, and must elect at once; in the second, he is ignorant of the surrender ; and the law gives him twenty days to receive notice of the fact, and make his election. But, because so much time may not in every case be necessary, the defendant may be discharged sooner, if sooner the the plaintiff determines his election. Int his case he did determine his election before the twenty days had expired, and consented to the defendant’s discharge, not from execution, *but from that custody of the sheriff in which the bail had placed him. In other words, he signified his refusal to charge him, in the words of the act of assembly. And, consequently, by the express provision of the act, which merely affirms the principle of the common law, as pronounced by Comyns & Hobart, the same defendant, and much more his co-defendant, was left open to the plaintiff’s execution. And so, the judgment was not satisfied, nor the bail released by that discharge.

III. It is contended that the scire facias is illegal and void; 1st. Because the recognizance, on which it is founded, having been to M’Credie, Higginbotham & Co., without specifying the names of the partners, was entirely void. But the recognizance is no part of this record. If the bail had a mind to take advantage of any defect in it, he should have craved oyer, and made it a part, (a) Whether the original suit was in the name of M’Credie, Higginbotham & Company ; and, if so, whether the declaration therein was defective, forms no part of the present enquiry. Eor the bail can take no advantage of errors in the original suit. The scire facias, as to him, is a new suit, and he cannot look farther back; even to the recognizance, unless he makes it a part of the record, by oyer.(b) But, in this case, the bail, by pleading satisfaction in bar, have admitted the original right of the plaintiffs, founded on the recognizance, and relinquished such objections as that now in question. If, however, the recognizance had been part of the record, and given to M’Credie, Higginbotham & Co., would it have been void on that account ? — Merchants gain, and give, credit in the name of their firm. In this there is no imposition, because they who deal with them know what persons constitute the firm. All bills and other, contracts on the part of the firm are signed in that name; and all undertakings to them are constantly given to the firm in like manner. The principle contended for, on the other hand, goes to declare all such engagements void, because in the name of the firm. Such a principle would spread havock, far and wide, among the mercantile part of the community. *2dly. It is said, that the names of the partners at the time of the judgment, and the deaths of those who died, should have been specially stated in the sci. fa. But this objection is not founded in reason, or in law. In reason, saying that the plaintiffs are the surviving partners, is saying that the rest are dead. In law, a declaration is sufficient if it give the names of the surviving partners, and allege them to be so, without stating the deaths of the others ; and a fortiori, where the plea admits the plaintiffs to be the surviving partners ; as in this case, (c)

IV. The recognizance is alleged to be defective in not following the form prescribed by law. To this objection, as to the former, the answer is conclusive ; that the recognizance is no part of this record. It was not necessary to set it forth in haic verba; but only sufficiently to apprize the bail correctly of the case ; and that this has been done is admitted by the plea. The nature of the undertaking of the bail is fixed by law, and not by the form of the recognizance : for the form prescribed in the Rev. Code, 1st vol. 113, does not, in terms, bind his goods and chattels, lands and tenements, but leaves that to the principles settled by law.

Wickham. It is unnecessary to crave oyer where the recognizance is truly set forth in the scire facias, or to plead that which appears by the plaintiff’s own shewing.(d) The defects in the recognizance in this case appear on the face of the scire facias.

Williams. If a recognizance be good in substance, it is sufficient. The case of Read v. Charnley, 2 Ed. Raym. 1224, proves, that words to the same purport with those in the customary form will have the same effect.

November 27th, 1815,

*

For monographic note on Bail and Recognizance, see end of case.

(1)

 Note. It was said, in the course of the argument, by Williams, that this plea was defective in not stating that the surrender was before the return of a ca. sa. non est inventus; but, in Com. Dig. Title, Bail (R. 3,) the doctrine is, that “the defendant may plead a surrender, without saying that it was before a capias against the principal returned; for, if it was not, it shall be shewn on the other side.” — Note in Original Edition.

(a)

 Co. Litt 303 a.; 1 Saund. 28; Earl of Manchester v. Vail, note (2) and the authorities there cited.

(b)

 Astry v. Ballard, 2 Mod. 312.

(c)

 Clark v. Clement and English, 6 Term Rep. 525; Viner, 339, pl. 7; Bassett v. Salter, 2 Mod. 136; Amminett v. Harris. 1 H. and M. 488.

(d)

 liev. Code, 1st vol. ch. 66, sect. 31, p. 79.

(e)

 Wright, administrator, v. Kerswill, Barnes’s notes, p. 376.

(f)

 Scott & Co. v. Dunlop, Pollock *&*Co., 2 Munf. 349.

(g)

 Lilly’s Entries, 398, Peters v. Heather; Ibid. 637, 638; 1 Stra. 631, Morefoot v. Chivers.

(h)

 Eev. Code, 1st vol. p. 113.

(i)

 3 Bl. Com. App x. xx.

(1)

 Note. The recognizance in this case was not inserted in the transcript of the record. It was described in the scire lacias, as follows: “And whereas, at a court continued and held for the county of Albemarle, the 4th day of March 1807, Bezaleel Brown and Benaiah Brown, nun. personally came, and. became pledge and bail for the said William T. Henderson and Matthew Henderson, that, if it should happen that the said William T. Henderson and Matthew Henderson should be convicted, at the suit of the said M’Credie, Higginbotham & Company, in the action aforesaid, then the said Bezaleel Brown and Benaiah Brown, iun. granted, that, as well the debt aforesaid, as all such costs and charges as should be adiudged to the said M’Credie, Higginbotham & Company in that behalf, should be made of their goods and chattels, and levied to the use of the said M'Oredie, Higginbotham & Company, if it should happen that the said William T. Henderson and Matthew Henderson should not pay the debt aforesaid, and those costs and charges aforesaid, to the said M’Credie, Higginbotham & Company, or should not render themselves to prison, in execution thereof.” — Note in Original Edition.

(a)

 Barnet v. Watson, 1 Wash. 372; Murdoch v. Herndon, 4 H. & M. 200.

(b)

 3 Bl. Com. 414-15.

(c)

 Cro. Car. 75.

(d)

 1 Com. Dig. 699. Bail *(Q.*4.) Welby *v.*Canning, Hobart, 210.

(e)

 Astry v. Ballard, 2 Mod. 312.

(f)

 3 Bl. Com. 414-15 ; Hobart 2 ; and 452. Foster v. Jackson.

(a)

 Wraight v. Kitchingham, 1 Stra. 197.

(b)

Ibid.

(c)

 Murdock v. Herndon’s Exrs. 4 H. & M. 200.

(d)

 Leftwich v. Berkeley, 1 H. & M. 61.

JUDGE BROOKE

pronounced the opinion of the court, as follows :—

The first objection to the judgment of the County Court, in this case, arises out of the pleadings. The insertion of the word “defendant,” instead of “defendants,” in the demurrer, is supposed to restrict it to the plea of one defendant *only. The plea is the joint plea of both defendants expressly, and the joinder in demurrer is by both defendants also. The court is of opinion, that the inference drawn from the insertion of the word defendant, instead of defendants, in the demurrer, (if not a mere clerical mistake,) is countervailed by the plea and joinder in demurrer.

The validity of the plea upon demurrer is next to be considered. It alleges, in substance, in bar of the scire facias, that Matthew Henderson, one of the obligors, was delivered up by his bail in due form of law, after the judgment was rendered, and, while in the actual custody of the sheriff, was, by the plaintiff’s attorney, duly authorised for that purpose, discharged from custody by a written order, and recites the substance of that order.

The court is of opinion, that the surrender of one only of the defendants was not a full performance of the undertaking of the bail, and no bar to the scire facias. It is not analogous (as was argued) to the case of the *248discharge of one of two defendants in execution. In the latter case, the discharge of one defendant is the discharge of both, because the execution, being joint, is ineffectual as to one only. Nor is such surrender analogous to a discharge under a supersedeas in England, the effect of which there, is to deprive the plaintiff of his right to sue out a ca. sa., and operates as a penalty on him for permitting the defendant to remain in custody longer than two terms without charging him in execution. The surrender by the bail, both before and after judgment, produces no such consequence under our act: the defendant is still subject to a ca. sa., and, of consequence, the surrender of one defendant is not as effectual as the surrender of both in this case.

On these grounds, the court is of opinion, that the judgment of the County Court, sustaining the demurrer, was correct. The judgment’of the Superior Court is therefore reversed, and that of the County Court affirmed.