Bombaugh v. Robinson , 1 Watts & Serg. 159 ( 1841 )

Per Curiam.

It is perhaps possible that an arrest of one defendant on a capias ad satisfaciendum, against two or more, would be satisfaction of the judgment, and that a second execution could not issue—about which we say nothing—but what is the condition of the recognizance of their special bail 1 It is that the defendants will pay the debt, or be surrendered in execution when called for; and it is consequently broken, when the bail, being called on in the proper way, omit to surrender them all. The capias ad satisfaciendum is necessary to ground the scire facias, but only to give notice to the bail, that their principals are demanded; and, the object being to fix the bail, it is never served. It has the four days in the sheriff’s office, and is returned 7wn est inventus, as a matter of course. But a plaintiff has, by the terms of such a recognizance, a right to demand all the defendants ; and if they are not all forthcoming, the bail are answerable for it. They are special gaolers of their principals, at their own request; and are liable for the non-production of any of them, as the sheriff would be. Now, it has been ruled, that if there be two in execution, and one of them escape, though the other remain in prison, yet shall the sheriff be liable for the debt, because each body is a separate and distinct pledge for it; and it is therefore fixed upon him if either escape. Roll. Ab. 801; Dalt. 561. For the same reason, when one escapes from the bail, they are liable for the whole.

Judgment reversed, and a venire de novo awarded.