#### WILLIAM *W.*BRADHURST *vs.*A. H. ERWIN.

A writ was executed on A. and B. and the sheriff took from them a bond,with a condition “that if the above bounden A. and B. do make their personal appearance before the.Judge of the Superior Court of Law, 4'c., then and there to answer, &c., and there to abide the judgment of the said Court, and not depart the same without leave first had and obtained, and if the securities shall well and truly discharge themselves as special bail of the said A. and B. then the obligation to be void, &c.” Afterwards a *nol. pros.*was entered as to A. and a judgment obtained against B. *Held,*tha.t this bond did not constitute A, the bail of B.

The case of *Ciarle y Walker,*3 Ire. 181, cited and approved.

Appeal from the Superior Court of Law of Burke County, at the Spring Term 1848, his Honor Judge Battle presiding.

*496This was a *scire facias,*issued by the plaintiff to subject the defendant as the bail of one J. J. McElrath, and was submitted to the Court upon the following case agreed. The plaintiff sued out a writ of trespass on the case in assumpsit against the present defendant, and J. J. McElrath, which was delivered to the sheriff of Burke County, who executed it on both the defendants therein' and took from them a bond payable to himself for the sum of eight hundred dollars with the condition “that if the above bounded J. J. McElrath & A. H. Erwin, do make their personal appearance before the Judge of the Superior Court of law to be held for the County of Burke at the court house in Morganton on the 7th monday after the 4th monday in March next, then and there to answer William W. Bradhurst of a plea of trespass on the case to the plaintiff’s damage four hundred dollars, and there to abide by the judgment of said Court, and not depart the same without leave first had, and if the securities shall well and truly discharge themselves as special bail of said McElrath and Irwin, then this obligation to be void, else to remain in full force and virtue.” This bond was assigned by the sheriff to the plaintiff in the usual manner. The writ was returned to the Spring Term 1840 of the Superior Court, at which the defendants appeared by their Attorneys and entered their pleas to the action. Afterwards at the Fall Term 1845 of said Court, a judgment of non-suit was given against the plaintiff which, on his motion, was set aside as to McElrath, but not as to the present defendant Erwin, and at a subsequent term to-wit, Spring Term 1846, of said Court, the plaintiff obtained judgment against the said McElrath for the sum of $413 32-100, of which sum $296 46 100 was principal, to bear interest from 21st April 1846. Upon this judgment a *ca. sa.*was issued against the defendant therein and returned “not to be found whereupon the present *sci. fa.*was sued out upon the above mentioned bond, to subject the present defendant Erwin to the payment of *497the said judgment against the said McElrath as his special bail. Upon the return of the *sci. fa.*the defendant appeared by his attorney and pleaded *“nul tiel record”*and *“non est factum.”*If the Court be of opinion that the plaintiff is entitled to a judgment on his *sci. fa.*against the defendant, Erwin, then a judgment for the sum of $413 33-100 with interest on $296 46-100 from 26th April 1846 until paid, is to be entered for him, but if the court be of opinion that the defendant Erwin cannot be subjected as bail for the said McElrath, then a judgment of non suit is to entered. The Judge presiding in the Court below was of opinion, that the defendant, Erwin, could not be subjected as bail for McElrath, and gave a judgment of nonsuit from which the plaintiff appealed.

*N. W. Woodfin,*for the plaintiff.

*Avery*for the defendant.

Battle, J.

We concur in the opinion given upon the case agreed by the presiding Judge in the Court below. The plaintiff’s counsel has contended, that, as the writ in the original suit was against both McElrath and Erwin, and they, upon being arrested gave a joint bond to the sheriff for their appearance to answer the action, they thereby became mutually bound as special bail for each other, and that consequently Erwin can be subjected in this manner as the bail of McElrath. But that cannot be so, because the obligation of Erwin, as a principal, is very different from what would be his obligation as special bail for the appearance of his co-defendant McElrath. As principal, he was bound to appear, answer the action and stand to and abide the judgment of the Court. From that he was discharged by the judgment of nonsuit, against the plaintiff as to him. As special bail, he ought to have had the right secured to him by the bond of discharging himself, as such by the surrender of his principal or otherwise according, to law. *498But sucb are not the terms of the bond either express or by any fair implication ; and, that being so, he cannot, according to the decision upon this point in the case of *Clarke*v. *Walker,*3 Ired. Rep. 181, be subjected by the plaintiff as the special bail of McElrath.

We decline giving any opinion upon the question whether the sheriff himself can have any remedy upon the bond, if he should be subjected as special bail for Mc-Elrath, in consequence of his having failed to take special bail upon making the arrest in the original suit.

Per Curiam, Judgment affirmed.