#### John Patten *and*Smith Cutter, *Bail*of Benjamin A. Joslin, *ads.*John Steward, Jr.

August Term 1828.

There is no distinction between proceedings against bail and other joint debtors, and the plaintiff may proceed and declare against both, under the statute, as in ordinary cases, where one defendant is taken and the other not found.

Where, therefore, in an action upon a recognizance the sheriffhad returned upon the writ, one of the defendants taken and'the other not found, and the plaintiff under the statute relating to joint debtors, declared against both bail, and amotion was made in the name of the defendant not taken, to enter an *exoneretur*upon the bail piece in the original suit, with the avowed object of making it available to both, *the motion toas denied.*

The *right*of the bail to discharge himself by a surrender of his principal ends with the return of the *ca. sa.*in the ¡original suit, and the eight days is matter of grace rather than of right. ■

Mr. Selden, in behalf of Patten, one of the defendants in this cause, moved that an *exoneretur*be entered on the bail-piece. He read an affidavit stating, that a suit had been commenced against the bail in which the capias ad respondendum had been returned, one defendant taken, the other not found. The plaintiff upon this return had, under the statute relating to joint debtors, (1 R. L. 321.) declared and proceeded against both the bail. In behalf of the defendant not taken, he now moved for an *ex-oneretur*on the bail-piece in the original cause, with the avowed object of making it available to *both..*He cited *Col. Cas. p.*56. and contended, that although, if. the plaintiff had commenced several suits against the different bail, he might have fixed one, or both of them separately, yet, having proceeded against the two in one suit, the right of surrender enured to both. [ Dunlap, vol. 1. p. 205.]

*Mr. E. Curtis*and *Mr. D. B. Tallmadge,*contra.

They read an affidavit showing that on the return day of the process against the bail, the piincipal arrived in town, stopped at the house of Patten, one of the bail, and had ever since resided there with him.

In reply to the case cited they remarked, that under the return to the capias in that cause the plaintiff could not proceed against *39both bail. It was a defective return, being silent as to one defendant. The plaintiff in that case elected not to proceed against the bail taken under the provisions of the statute concerning proceedings against joint debtors, but had issued fresh process to bring in the bail not taken on the capias first issued ; and before the return day of the last capias, the bail last taken applied for an exoneretur° The bail *last taken*was in that case entitled to an *exoneretur',*and as the plaintiff was seeking to charge the bail *jointly,*the surrender of the principal discharged the joint liability of the bail. But in tins case, although the process was against both Patten and Cutter, yet upon the return of *non est,*as to Cutter, they had proceeded to judgment against Patten alone, and he was therefore fixed. Bail are only relievable as matter of grace, not of right. *[Arch. Prac. p.*9. *1*Wen*dells Rep. p.*50.]

*Selden,*

in reply, remarked that if this motion were denied, the effect to the defendant not taken in cases where the bail had joint property (which was the fact also in this case) would be the same as if the motion were denied as to *him,*when made within eight days after the return of a capias in a separate suit against him.

*Per Curiam.*

This is an application to enter an *exoneretur*on the bail-piece ; and the question is, whether the bail, by surrendering their principal, can now be exonerated, the time for surrendering having expired. The case of Ballard and Parkman ads. Kibbe and Ludlow, *(Col. Cas.*56.) cited in support of the application, is quite distinguishable from this. There the sheriff’s return was defective; and Parkman, one of the defendants, had endorsed his appearance on the capias two days after the return day; while the other defendant, Ballard, was arrested by the sheriff on a testatum capias against him alone, and made returnable in Jan. 1798. But he surrendered his principal in behalf of himself and his co-bail before the return day of the testatum capias. The declaration was not filed until Feb. 10, 1798 ; and the court held, that the surrender was regular as to both, no declaration having been filed, or proceedings had against *40the defendant who endorsed his appearance, until the arrest of his co-bail.

The rule is, that the bail are entitled to eight days entire, where the process is against both, but the return must be compíete. Here the plaintiff elected to proceed upon the first return without suing out an *alias*against the defendant not taken, and filed his declaration; and there is no distinction between proceedings against bail and other *joint debtors.*

Both bail are bound for their principal, and the plaintiff has a remedy against them jointly and severally. He may proceed, therefore, either against both or one. Patten, the defendant who now applies for relief, has had every opportunity to exonerate himself by surrendering his principal, and has failed to do so. This was his own fault, and he is now fixed. The right of the bail to discharge himself ends with the return of the ca. sa. against his principal; and the eight days is matter of grace rather than of right.

This motion must be denied; but the bail not taken has liberty to make such application *to*the court as his case may require.

Motion denied.

[D. Selden, *atty. for*deft. E. Curtis, *atty. for plff.]*