#### C. T. Karck *vs.*J. H. Avinger.

Before hia Honor Judge Gaktt, at Charleston, May Term, 183f>.

*Judge's Eff ort.*— This was an action of assumpsit, upon a joint and .-uv, it,i r.< te, lor t inety-six dolíais and nil e cenia, [ eyni ie to plr.ssUifi, m; ft by if; K i'fi Jv n cion and J. Ii. Atingí r. T he t ote wuc ii the h Uow u p v. uve: -* (. harli ston, lOlh lx ccml.er, 1834. Oi she I4-- i v \ of J; i i.fij next, lbtift, í | u mise io pay to h:i. C. Tbeodoic Liuc k, or l.:s i.u.er. nil eiy-six dolh.is uno i n e- i tuts, for value uceiviti.” (teigud) ban-nil Jameson, J. Ii. *Aui,g<r.*

The plainUli cfiwi.t! ced suit on it:»' 12¡h day o. Muren. 1835, by ls-f-uit.g a tail win apt!, st the two; and the ¡ fib avit to bola to bail, ehniged both J. 1.. Amper, and Samuel Jincson. 'the sheriff made the following return on the writ: “ *Non est*inventus,” as *202íq Samuel Jameson, and “ *Cepi*Corpus,” as to J. H. Avinger, who gave bail, individually, in this action. The declaration was filed against J. H, Avinger alone, and no appearance having been entered for him, an order for judgment was granted. In this state of the case a motion was made, before me, to set aside the proceedings for irregularity ; or that an *exonerelur*be entered on the bail-bond. I thought, on looking into the case of Moss and another vs. Birch and another, 5 T. R. 72-?, and the cases there referred to, that the question was settled, and that the proceedings must be set aside. I, therefore, made the. rule absolute ; from which decision, I have received notice of appeal, on the grounds annexed.

RICHARD GANTT.

The plaintiff appeals, and moves to. reverse the decision of his Honor, and to rescind the order, on the following grounds:

1st. That there was no irregularity in the proceedings, which would authorize a rule, either to set them aside, or to have an *exone-retur*entered on the bail-bond.

2d. That if there was any irregularity, the application came too late, after an order for judgment.

3d. That the order was, in other respects, contrary to law, and the practice oi the court.

BAILEY & DAWSON, *Plaintiff's Attorneys,*

Mr. Justice Evans

delivered the opinion of the court.

Two questions are presented in this case, both of which it is ne.-cessary to decide.

1st. Can the judgment against the defendant be set aside oa account of the variauce between the writ and declaration?

2d. Is the bail of Avinger entitled to have an *exoneretur*entered on the bail bond ?

On the first question it seems to me there is no difficulty. The defendant entered no appearance, and there was a judgment against him by default. He was, therefore, not entitled to plead. The va. riance, if it could be taken advantage of, could avail him only by pleading. The contract was joint and several, al. hough the note began, ,l I promise.” 2 Bailey, 88. Upon such a contract, the plaintiff, although he issues his writ against both, may at any stage discontinue as to one, and proceed to judgment against the other, The rule is otherwise on joint co .tracts. In England, a distinction is made between actions bailable, and not bailable. But the rule seems to be of modern origin, and 1 can see no good reason for the distinction It has been disapproved oí in that country, and has never been adopted in this State, go far as 1 am informed.

To determine die second question, it is necessary tolookint® the facts. The affidavit charged, that both Avinger and Jameson *203were indebted. The writ issued against both. Avinger, alone, Was arrested, and “gave bail individually.” The plaintiff filed his declaration against Avinger alone. The principle to be extracted from all the cases, is this ; if the liability of the bail be changed or varied, so as to subject him to a different form of action, or a different cause of action, from that set out in the affidavit, the bail are entitled to be discharged. It does not seem to me that this has been done in this case. The affidavit alleges, that both are indebted, but the liability of the bail is not increased, nor is his contract varied by the circumstances ; the drawers of the note are severally, as well as jointly, liable. The contract of the bail was, that his principal should pay the judgment, or surrender his body, in default, the bond was forfeited, and the plaintiff enabled to recover of the bail a judgment for his debt, by way of damages, to be assessed by a jury. I have not stated the words of his bond, but its legal effect. Will the recovery against. Avinger, alone, subject the bail to any greater liability, than he incurred by his bond 1 If it does,I cannot perceive it. It is true, if both had been sued, and the plaintiff had recovered judgment against both, the chances of payment would, perhaps, have been increased, but the defendant’s bail-bond has no dependence on the liability of another. The affidavit charges, “ that both were indebted.” This is true in fact. Each was liable for the whole; and with this affidavit before him, the bail under, took that Avinger should pay, or be surrendered in satisfaction of the damages which the plaintiff might recover on the cause of action set out in the affidavit.

But there is another view of this subject. This is an application to have an *exoneretur*entered on the bail-bond, and to entitle the bail to this motion, he must make his application according to the rules of practice prescribed by the court. In Sanders vs. Hughes, 2 Bailey, 511, it is said, that before such an application as this can be heard, “ the bail must swear they were ignorant that the cause of action declared on, was that which was intended to be embraced in the affidavit, that they executed the bond, lielieviug the cause of action to be different from that sec out in the declaration, and that they have sustained some prejudice or injury thereby.” It might have been sufficient to have said that no such affidavit has accompanied this application, and the defendant must be left to such de-fence as he can make, when sued on the bail-bond. The motion is, therefore, granted.

JOSIAH J. EVANS.

*204Baxley & Dawsox, *Plaintiff's Attorneys.*

Esgleston & Fiiosr, *Defendant's Attorneys.*

We co icur,

JOHN B. O’NiSALL,

A. P. BUTLER.