Myers v. Irons' Ex'x

The Chief Justice

delivered the opinion of the court.

This was a scire facias against Myers and Asturgus as ¡special bail. The first scire facias was returned executed upon Myers, and not found as to Asturgus. At the next term, before any other scire facias had issued against As-turgus, Myers produced in court the body of the principal, and offered to surrender him, but the court refused to order him into custody, and gave judgment against Myers, not only for the costs of the scire facias, but also for the amount of the judgment in the original action. From that judgment Myers has appealed to this court.

B. Hardin for appellants, Littell for appellee. On a joint recognizance ¿d a sci. fa retur-bait’ifhesur-renders the principal, all l Xcept as to costs: Aider J^ance"rS been joint & several.

■ If the ‘ recognizance upon which the scire facias issued in this case, had been according to the usual form, joint hnd several, the judgment of the court below would, no doubt, have been correct and in strict conformity to the opinion of this court in the case of Lucket against 4 Bibb, 181. J3ut the recognizance, contrary to the usual form, is joint only, and the scire facias being ⅜0 have execution according to the form and effect of the recognizance, must also be joint in its operation. Both the bail must therefore be made Háble, or nejther can be so. And as the surrender of the priccipal, before the second snirc facias issued against Asturgus, was sufficient to discharge him under the act pf Assembly, (1 Littell, 495.) it follows as "a necessary consequence, that it was sufficient to discharge Myers. The circuit court therefore instead of entering a judgment against him for the amount of the original judgment and the costs of the scire facias, should have discharged him; and on the return of a second scire facias against Asturgus, should enter a joint judgment against both for the costs of the scire facias.

Judgment reversed with costs, and the cause remanded for proceedings to be had not inconsistent with the foregoing opinion.