#### *Felix Crosslin vs. Reed*& *Reed. Lamar*& *Daniel vs. The Same. Peter Lamar vs. The Same.*

1. The 8th sect, of the attachment Act, passed 1744, contains the provision “that if, at any time, within the year and day, any person shall appear as attorney, to the absent debtor, and will put in bail, to answer the action, and pay the condemnation,” then the *attaclvmenb*shall be dissolved.

2. The 16th sec. of the Act of 1785, provides, “that all attachments shall be repleviable, by appearance, and putting in special bail, if, by the Court, ruled so to do.”

3. These provisions constitute tire law upon the subject. And the Act of 1839 has not altered the old law. *Vide,*3 *McC.*347. *Fife <$• Co. vs. Clarke, as ilkisinraiive of the law.*

*Before*O’Neall, J. *at*Abbeville, *Fall Term,*1841.

These were motions, made before his Honor, Judge O’Neall, by the defendants, after having entered special bail before the Clerks of the Court; first, for leave to justify in open Court; secondly, to dissolve the foreign attachments, that had been levied by the Sheriff. Both of which motions were granted.

The presiding Judge, after notice of appeal, furnished the grounds of his decison, which is herewith subjoined ; which, with the grounds of appeal, will render the opinion of the Court, upon the case, satisfactory.

*Decision of the Court.*

The bail pieces, offered in these cases, have heen objected to, because they have the condition “that if the defendants be condemned, in the action aforesaid, they shall pay the condemnation money, or surrender themselves prisoners, to the Sheriff of the district, aforesaid,” when, according to the Act of 1839, it is contended, that it should have been, “ that if the defendants be condemned, in the action aforesaid, they shall pay the condemnation money.” The Act of ’39 provides: “ and when the defendant, in cases of attachment, by the Court, ruled to put in special bail, before appearance, or, otherwise, desiring to appear in that manner, shall in person, or by attorney, apply within the proper time, to put in bail, to answer the action and pay the condemnation, the Clerk shall, thereupon, take such bail.”

*11The eighth section of the Act of 1744, contains the provision, that “ if at any time within the year and clay, any person shall appear as attorney to the absent debtor, and will put in bail, to answer the action, and pay the condemnation,” then the attachment shall be dissolved. The sixteenth section of the Act, of 1785, provides “ that all attachments shall be repleviable by appearance, and putting in special bail, if, by the Court, ruled so to do.”

These provisions constitute the law on which the Court passed, in *Fife & Co. vs.*Clark, 3 M’Cord, 347, and declared that a recognizance, conditioned to pay the condemnation and costs, or surrender himself to the custody of the sheriff,” was a compliance therewith. Here it ought to be remarked, that the condition to pay the condemnation money, covers the debt and cost, as well as the words, “condemnation and costs,” so that the bail pieces, here, may be regarded as having the same condition, as that in the case of *Fife & Co. vs.*Clark; and if the Act of ’39 has not altered the old law, I am bound to conform to that decision.

I think it has not; for it speaks of being “ruled, to put in special bail, or otherwise, desiring to appear in that manner.” Which shews that it was the purpose of the Legislature to retain the old security, and not introduce a new one. And although they speak of putting in “bail to answer the action, and pay the condemnation,” it cannot be supposed, that they intended to alter the form of the bail piece.* For where the Legislature use technical words, they must be understood in their settled, legal sense. The terms “bail to answer the action, and pay the condemnation,” is a description of the bail piece, required for special bail, at common law.

But, independent of this view, the law still stands, that “ all attachments shall be repleviable by appearance, and putting in special bail, if, by the Court, ruled so to do.” The meaning of the terms, “if, by the Court, ruled so to do,” is nothing more, than that the Court may order, that the defendants shall have leave to appear on entering-special bail. It is no objection to this, that the recognizance was executed before the motion. The Act of ’39, simply directs, when the defendants are ruled to put in *12special bail, that the Clerk shall take such bail. He has taken the recognizance, and the bail aré now before me, to justify. This is sufficient. Let the bail justify; and thereupon, the defendants may take their motion, to appearand dissolve the attachments.

The plaintiffs, in the above cases, appeal, and will move to reverse the decision of the presiding Judge, on the following grounds:

1st. Because his Honor erred in holding, that defendants, in foreign attachment, can appear by putting in special bail.

2nd. Because the only mode, in which defendants, in attachment, can be permitted to appear and dissolve the attachment, is by putting in bail, with the condition absolute, “ to answer the action, and pay the condemnation.”

3rd. Because the proceeding was irregular and premature. For, conceding that defendants, in attachment, may appear by special bail, it is only when “ ruled by the Court so to do.” No such order was obtained.

4th. Because the motion of plaintiffs, to discontinue, as to Jane Reed, should have had precedence.

5th. Because the proceeding was otherwise irregular, and the decisions contrary to law.

Curia, *per*

O’Neall, J.

I have reviewed my decision below, and have given to the argument of the defendants’ counsel, that consideration, which the importance of a well argued legal question, always demands. I have not been able to detect any error in the judgment below. The fourth ground of the motion is unconnected with the main question, it will be first disposed of. The application of the defendants, “to let the bail justify,” was made before the motion for leave to discontinue, as to Mrs. Reed. It was, therefore, in point of order, entitled to be first heard. As soon as the bail justified, the other order, for the dissolution of the attachment, followed as matter of legal consequence. For, by law, as soon as special bail is put in, the attachment is dissolved. I have never been able to discover, why the motion to discontinue, as to Mrs. Reed, should have been so zealously pressed, as a *privileged*mo*13tion. If it was intended to obtain some legal, technical advantage, such as that Mrs. Reed had executed the bail piece, when slie was not a party, *this*was reason enough, why the Court should have first permitted the bail to justify, and dissolve the attachment. For the putting in bail made the proceeding *in rein,*a proceeding *in perso-nam,*and the parties, after it, stood upon the same footing, which they would have occupied, if they had been served with process. This was making the parties equal in Court. And after the attachment was dissolved, the plaintiffs could as well discontinue, as to Mrs. Reed, as before. The other grounds present the question, which was decided on the circuit, and it might be sufficient to refer to the judgment below, for the reasons of the judgment here; but it' may be well to add to them some other views, which the argument on the appeal and subsequent reflection have suggested. The terms bail, and special bail, used in the Act of ’39, are terms well understood in their legal sense. The term bail, in its ordinary legal sense, is the delivery of the defendant to his securities, or keepers; as it is usually applied in this State, it is understood to mean, bail below, or bail to the Sheriff, which, by our act, has been turned into bail above, or bail to the action. The Act of ’39, if it had stopped at “bail, to answer the action,” would have merely described, “bail below, or bail to the Sheriff:” to obviate that, they added the words, “and pay the condemnation,” which was a definition of special bail, bail above, or bail to the action! The attachment of the defendant’s goods, is to compel him to appear; and operates as bail to the Sheriff at common law, which is thus described in 3d Petersdorf’s Abridgement, Title Bail, 97, marg. page. “The bail bond, being conditioned for the defendant’s appearance in Court, on the return day of the process, *it is*obvious, that, in strictness of law, nothing can be a performance of the condition, but effecting what is technically called an appearance.” The Legislature speak of *“*special bail before appearance, or otherwise, desiring to appear in that manner.” This was describing the course of things, which results from putting in bail to the action, and which was a common law appearance. Petersdorf describes it as follows. “ This (that is a technical appear-*14anee,) is effectuated, by putting in special bail to the action, or bail above, as they are in general, denominated in contra-distinction to the bail below, or bail to the Sheriff.” “Bail above, or special, may be described as persons who undertake, generally, or in a sum, certain, that the defendant, if convicted, shall satisfy the plaintiff, or render himself to proper custody.” It is plain, therefore, if the Legislature intended to use the words as legal, technical terms, that the bail pieces offered here have the proper condition. That they intended nothing new, is to be inferred from the fact, that they have merely put in one clause, provisions, which before existed, in different acts. The case of *Fife & Co. vs. Clarke,*had given construction to them, and settled the course of practice, and if the Legislature had intended to introduce a new rule, they would have made an entirely new provision. This was not done, and hence, I take it, they intended the old construction should prevail. Independent, however, of that, I think that a bail piece, to answer the action and pay the condemnation, would have no greater legal effect, than one conditioned, “to pay the condemnation money, or render himself prisoner to the' Sheriff of the district, aforesaid.” If it be bail, it is plain, that the party may be surrendered. It is called, “bail and special bail” in the Act; and in addition to this, the bond is to be conditioned to answer the action. What is that, unless it be security for the party’s appearance: and if he be not in the custody of his keepers, how can they undertake for his appearance *1*Again, the undertaking is to pay the condemnation. Cannot that be effected in two ways ; 1st. by a payment in money, and 2d. by a render of the body *'l*For while the body is in custody, the plaintiff can have no other satisfation. It is, at least, so long, to be regarded as the highest degree of payment. If it does not produce satisfaction, in fact, it may be, that the party may resort to other remedies. But the surrender of the body is the very utmost, which the creditor can demand in payment. In *Young vs. Grey,*Harp, 40, the bond, I know, was conditioned, as these plaintiffs would have this to be, and yet in it, it was said, as settled law, “the bail might have surrendered their principal.” This being the case, and the condition, demanded *15by the plaintiffs having no greater legal effect, than that used by the defendants, we should not be warranted in refusing the bail pieces. But I am entirely satisfied with the case of *Fife & Co. vs.*Clarke, 3d McCord, 347. It ruled correctly, that the form of the bail piece, required under the attachment Acts, should conform to the form required for bail above, or bail to the action; and the Act of ’39, has not altered the law in this respect. The motion to reverse the decision below, is dismissed.

*Wilson &*Martin, for the motion.

*Wardlaw &*Perrin, contra.

JOHN B. O’NEALL/

We concur. Josiah J. Evans, B. J. Earle.

Gantt, J. heard this case and concurred in this opinion.

Richardson, J. absent at the argument; but examined the opinion, and was satisfied with it.