132 CASES IN THE SUPREME COURT INITTLE WOOL DON IOU ..Orsotif SARAH CHANDLER against Cfrasicassi RICHARD C. BYRD. va,.
MED ERROR to Pulaski Circuit Court. The securities of the defendant in a bond taken of him on a capias in detinne under the statute, are his bail; and are only personally responsible for the defendant, not answerable in all eventa for the delivery of the property sued Ter: The liability of the defandant is wholly personal, and the bail are ii thle to no greater extent than he. By the condition of the bond, the defndant binds himself 44 to deliver the property to the plaintiff, and pay the damage for the detention, and costsof mid i " and the bail are bound with him. en action upon snob bond, an assignment of a breach, that judgment Was rendered against the administrator of the defendant for the property, and that saCh judgment remains in full force and effect, and unsatisfied, does not constitute a good .breach. The sureties in a bail bond in detinue may surrender their principal in discharge of bail, in the same manner as in other actions, and, as in other actions. Are only liable for the personal responsibility of their principal—and the death of the priecipal exonerates them from responsibility. The plaintiff in ewer brought an action of detinue in the Supreme Cohrt of the Territory of Arkansas, to the April Term thereof, 1823, &phial one illeogFride,r W Cotton, for four negvoes, and sued out a ca-pias an detinne under the statute. Cotton Was taken upon the capias •and entered into bond to the plaintiff, on the 31st of October, 1827, with the defendant in ismer and John IV. Cadre as his securities.; in the sum of twit thousand friar hrindred dollasi, conditioned that he ttonld aPPear at the return term and make good his claim to the ne-groes, and that if judgment *Mid be given against him at that or any tinbsequent term, he wnald deliver negroes to the plaintiff, and pay all damages assessed for their detention, and costs of suit. It is Upon this bond that the suit below was brought. Ostion appeared at the .return term Of the writ in detinue, and the vitt was continued, unfit by his death in November, 1828, it abated. The Elia was afterwards revived against his administrator, against iFhom jpdgment was obtained forthe negroes by the plaintiff ha error, et the July Term of the Supreme Court, 1830, which judgment is un-sathfit4 An aril= of debt was then commenced on the bail bond by the plaintiff Oa error, against the defetadaMt in errOr and the said Jem cocke,.to,4una Terin; 1831, of the Court below, and after various tteitti had been taken in the cauSe, the defendant in ervor, against Whor Anne the suit proceOded, filed two amended pleas. To each
OF THE STATE OF ARKANSAS. 153 of these the plaintiff filed a demurrer, and the demurrer to the first was Vgr sustained, and to the sccond overruled. The first plea was not afterwards July, 1838. amended. The second, which the Court below adjudged good, CHANDLER leged in bar the death of Cotton before judgment obtained in detinue, BYRD. and the coniequent abatement • of the suit. After the plaintiff's de-murrer to this plea was overruled-, she filed her replication to the plea, alleging as an answer to the plea, that after the death of Cotton the suit was revived and final judgment obtained therein, against his administrator, and that such judgment was entirely unsatisfied. To this replication the defendant demurred, and his demurrer being sustained, the plaintiff suffered judgment to be rendered on the demurrer, and sued his writ of error. The errors assigned were that the Court below erred in overruling the demurrer to the second amended plea, arid in sustaining the demurrer to the replication. HALL and CUM3fiNS, for plaintiff in error: TRAPNALL and COCKE, contra: The bond and condition having been set 6 out on oyer, the defendant by his second amended plea, relies upon the fact that his principal, the said A. W. Cotton, appeared at the return of the process mentioned in the condition of the bond, and made good his right to the slaves then in controversy, and no judgment in that suit was given against him at that or any subsequent term of said Court until his death, et which time there was no breach whatever of the condition of his bond. The replication to that plea admits all of the facts stated in it, but undertakes to avoid thPm, and relies upon the facts that after the death of said Cotton, the principal, David Rorer, administrator of his estate, appeared, and the suit was revived against him as such administrator, and judgment subsequently obtained against him as administrator, for some of the slaves in controversy in that suit, damages, &c.; that the slaves were not delivered, or their valne paid, &c. to the plaintiff... The judgment against the replication rests upon the ground that thin nbligation of the defendant was simply an obligation of bail; that in all cases the obligation of the bail ceases upon the death of the principal before judgment; that their obligations being personal merely, that is, an undertaking that their principal shall do and perform cer-ta's acts, the performance of which are regulated by law, and hence
154 CASES IN THE SUPREME COURT LITTLIs Rom they have by Iaw the power (at any time before their hahility becomes July, 1838. fixed,) of arresting their principal and surrendering him in discharge CHANDLER of their obligatioa. They are in law considered as his prison. He ea. Dirsto. is by law Placed in and under their custody and keeping, and they have the power at all timeb to restrain his action so as to keep him Subject to their cOritrol. This is the meaning and very essence of bail, and there is no exeeption to it known to the law. The extent of their liability, and the conditions upon which their obligation becomes absolute, ate clearly defined by law; and as to the circumstances under which their liability becomes absolute, there is no statute changing them. See 2 Corn. Digo 51, n. y.; 1 Johns. Cas. 359; 9 J. R. 84; 2 Corn. Dig. 50, That bail, either coMmen or special, were discharged of all obligation whateVer by the death of their principal before judgment, is fully established by.. all' the authorities. 2 Corn. Dig. 53, (2,) 5; 1 J. R. 515; 2 Mass. Rep. 435; 2 Corn. Dig. 58-‘9, and afithorities thrre referred ta; 2 Ch. Bl. 292, n. 33. That in this Case, as in all other cases of bail, the plaintiff has had sill the benefit conferred° by law. The defendant was arrested and inSprisoned, (in the custody of his bail it is true, but that is as effectual and beneficial to her as if he was imprisoned in the common jail), and so reMained until his death, which was before any recovery against MM. 'Upon his death . the parties changed, and the hail never were bail or in any Wise security for the new party, who was himsolf by law required to give security for the due and faithful performance of the trust reposed in him. The contract of the . bail was as it always is, conditional. One of the conditions in this instance , was that the defendant in the original case should appear at the return of the writ against him and make good ids claim to the property, &c., and if judgment. should be given against him at that or any subsequent term, &c., he would deliver the property; &c. This was an tict (may it not well he said a personal ,,et,) to be performed by the defendant, Cotton himself, and upon his failure to perform which the liability of tire bail first attached. - Did he fail?— Certainly he did not. Then when did the obligation of the bail attach?. 'Certainly never. And this is the true distinction between this kind of obligation or gontract and a contract where the obligation commences at the time et making the contract. In the krmer something subsequent an:d
OF THE 'STATE OF ARKANSAS. 156 ting-nt must apprilr t y sf;)re any legal obligation attaches, and until "Tr" ROCK, the tri n..; nt . te ev,n ! :. on w ,k11 the, obliation is to attach there auty..18384 no iab,lity w)itt trv , 2r. In the o! her case, the obhgatioii. gommencing caANLLBit 98. with Vie contract (ontinues until it is discharged or extinguished, but BMA in this case the contingency on which the obligation of the bail was to attach had not happened when Cotton died, and never could happen afterwards, either by the express stipulation of the contract or any condition therecif expressed by law. It Will be further seen that the conditions of the bail bond -ia detinne are substantially the same with those in debt. Dig. p. 318,459. In this case, RINGO, C'. J., having been of counsel, did not sit. LACY, Judge, delivered the opinion of the Court: This was . an action of .debt, commenced by the plaintiff' in error against the defendant and John H. Cocke, as securities for Alexander W. Cotton, on a tail • hOn d . The undersigned, Alexander W. Cotton, of the county of Pulaski, in the Territory of -Arkansas, as principal, and R. C. Byrd and John H. Cocke, his sureties, by these presents bind themselves, their heirs, executors, and administrators, jointly and severally to pay to Sarah Chandler the just and full sum of two thousand and four hundred dollars, lawfhl money of the United States. Witness their hands and seals, this thirty-fist day of October, eighteen hundred and twenty-seven. “The condition of the above obligation is stich, that if the above Alexander W. Cotton be and appear at the next April term of the Superior Court in and for the Territory of Arkansas, in the year eighteen hundred and twenty-eight, and shall then and there make good •his claim to the slaves mentioned in the declaration, and if judgment shall 13.: given against him at thator any subsequent term, he, the said Alex-ander Cotton, shall deliver. to the plaintiff; the said Sarah Chandler, tile . Said negroes, Polly, Andy, Angeline. and Marion, mentioned in the said declaration,.and . if he shall pay all damages whichshall be , assessed for the detention of said negroes, and shall pay the costs of suit, then this obligation to be void and of no effect, otherwise to remain in fhll force and virtue. In testimony whereof,They have here-unto set their hands and seals the day and year above written. A. W. COTTON, (slum.) R. C. BYRD,.[SEAL.) JOHN H. COCKE, [ousol..)"
15ti CASES IN THE SUPREME COURT LITTLE The service of the summons or capias on John H.. Cocke was ROCK, quash-July, is3s. ed for insufficiency, and as the principel, er W. Cotton, was ell•NDLvli not joined in the action, the case was perm'tted to proceed lo trial in BY RD. the names of the present plaintiff and defendant. It is deemed unnecessary to notice any of the steps taken in the pleadings until the defendant had leave to file his amended pleas. He craved oyer of the bond or writing sued on, which was :dlowed, and- then put in two amended pleas in bar of the action. To each of the pleas there was n separate demurrer . and issue. The demurrer to the first plea was sustained, and judgment . entered up against the sufficiency of the plea. The demurrer to the second plea was overruled, and the plaintiff had leave to reply. She then filed her replication, and the defendant demurred to it. Judgment was pronounced sustaining the demurrer and declaring the replication insufficient. To reverse the decision of the Court below on these points the plaintiff now prosecutes her writ of error. The assignment of errors presents several questions for consideration, but . they all substantially resolve themselves into one, which is, was the second amended plea good in bar of the action; or in other words, was the demurrer to the replication rightly sustained? The plea and replication cannot stand together. If the former is good the latter must be bad, and in deciding the first point we are compelled necessarily to examine and pass upon the second. The second amended plea as set forth is, " that the defendant ought not to be charged with the debt in thc said declaration mentioned, because he says that the said illexander ff. Cotton, after the making of the said writing obligatory, to wit: at the said April term of the said. Superior Court in and for the Territory of Arkansas, held in the year eighteen hundred and twenty-eight in said condition mentioned, did appear, and did then and there defend and make good his claim . to the slaves mentioned in the declaration, and such proceedings were thereupon had in said suit in said condition mentioned, that the same was continued in said Superior Court without any judgment whatever having been given for the said plaintiff against said Alexan-der TV. Cotton for said negroes or any or either of them, until the 25th of November, eighteen hundred and twenty-eight, as will more fully -and at large appear by reference to the record thereof still remaining in the said Superior Court; and the said defendant in fact says, thaf Alexander TV. Cotton, on the said 25th day of November, eighteen hur
OF THE STATE OF ARKANSAS. 157 dred and twenty-eight, did die at New Orleans, to wit, at the county. Irlyge of Pulaski aforesaid, and that the said suit in this condition mentionedj Ju'r, 0311 afterwards, to wit, on the same day and year last aforesaid, became cuAtimoa and was abated by reason of the death of the said Alexander ff. Cot- BYRD. ton, and that no judgment was ever given for said negroes or any or either of them in favor of the said plaintiff against the said Alexander W. Cotton, and this the said Richard C. Byrd is ready to verify ; wherefore," &c. The replication is .accurately plead, and the legal consequences that flow from it are stated with particularity, and certainty. But it wholly avoids the issue tendered by the plea, which is, that the death of the principal before final judgment rendered against him discharges his bail, and consequently there is no cause of action against the defendant. The replication alleges that the suit was revived in the name of David Rorer, the administrator of Alexander W. Cotton, and that final judgment in the action of detinue was obtained against him at the July term of the Superior Court, 1830, and that judgment still remains unreversed and in full force and effect. The question then recurs, is the plea goodpor ought the demurrer to it to have been sustained? This proceeding is had under an act of the Legislature, approved December 22d, 1818. See Digest, 459. " SEC. 6. In all actions of detinue where the plaintiff shall file in the office of the Clerk of the proper Court, an affidavit stating that the property in the declaration mentioned is his property, and that he is lawfully entitled to the possession thereof and the value thereof, and that the defendant unlawfully detains the same, the Clerk shall issue a writ of capias in detinue and endorse thereon the amount as sworn to, and direct the Sheriff to take bail of the defendant in double that sum, and it shall be the duty of the Sheriff to whom the writ may be directed, to take the defendant's body and commit him to the jail of the county, or take a bond of such defendant to the plaintiff with sufficient securities in double the sum so sworn to, conditioned that he be and appear at the term of the Court to which the writ is returnable, and ,then and there to defend and make good his claim to the property in the declaration mentioned, and t hat if judgment shall be given against him at that or any other subsequent term, he will deliver to the plaintiff the prop.erty for which judgment shall be so given; and pay all damages which shall be asses:0- z
158 CASES IN THE SUPREME COURT LITTLE ROCK, ed for the detention thereof, and costs of suit; and the writ and bond July. 1838. shall be returned as in other cases." CRANDL5St Is the principal and his sureties bound by this act as in ordinary BYRD: cases of bail, such as debt, covenant, actions on the case, and the like, or is it an absolute and unconditional undertaking on his and their part to deliver the property or specified thing sued for, whenever judgment shall be obtained against the defendant Or his administrator? By the act of the Legislature, passed July 2d, 1 I 8 7, (see Digest, 317.) " SEC. 12. In all actions of debt founded a any judgment, writing obligatory, bill or note in writing, for the payment of money or other property, in aCtion of covenant, and in actions on the case, Where the plaintiff makes affidavit or affirmation of a real subsisting debt and of the sum in which be verily believes the defendant ought to give bail to secure such debt and costs, it shall and may be lawful for the plaintiff to sue out of the Clerk's office of the proper county a writ of summons, as is prescribed in the preceding section, or a writ of capias ad respondendum, on which capias the time, species of action, and- the sum for which i bail is demanded, shall be endorsed on such writ. It shall be the duty of the Sheriff to whom such capias ad res-pondendurn may be directed, to take the defendant's body, and commit him to the common jail of the district, (county), or to take a bond of the defendant, with sufficient securities, in the sum endorsed on such writ, conditioned that the defendant shall be and appear at the term of the Court to which the writ is returnable, and that if judgment be given at that or any subsequent term against him, that he will pay the debt or damages, as the case may be, and costs, and surrender himself in execution, or that the securities will do the same thr him." Is the obligation here sued on, a bail bond? . To determine this question we must enquire into the meaning of the term bail, and see to what extent the principal and his sureties are liable. Bail signifies a guardian, or one who has the legal custody of another. See '2 Contyn () (Bail). The word means to deliver, because the defendant is bailed or delivered to his securities. 2 Chitty's Blackstone, 290. The method of putting in bail to the Sheriff, is by entering into a bond or obligation, with one or more sureties, to insure the defendant's appearance at the return of the writ, which obligation \ is called the bail bond. Upon the return of the writ, or four days afterwards, the defendant must appear according to its summons, and the appearance is effected by putting in and justifying what is corn.
OF THE STATE OF ARKANSA. 159 monly called b.dil to the- action, whereby the . bai1 jointly and severally LiTTLE undertake that if the defendant ' be condemned in the action, he shall Jgc1148 pay the costs and condemnation, or that they will do it for him. , cHANDLin Special bail may be discharged by SUrrendering the , defendant into Bap• custody within the time allowed by law, for which purpose they are entitled to a warrant to apprehend him. They may even have a writ of habeas corpus to bring his -body into the Court of King's Bench, and that too when he is confined in a civil action or upon criminal charge. 7 T. R. 226; 6 Mod. 221. After judgment against the principal, if he does not pay the con° demnation nor surrender himself to prison, a . scire facias goes against And the capias ad satisfaciendum-ouglit to - have eight days between the teste and the return. 2 Comyn (R.) 4, (R.) The bail may plead payment or satisfaction after judgment. agaihst the principal, so if he pay, the Sheriff being taken upon a capias ad satisfaciendum. 2 Co-myn, (2,) 2, 6. So after judgment and error brought, and before judgment affirmed, if the plaintiff in the original action felease to the defendant all demands against him for damages, and afterwards the judgment be affirmed, the bail in the suit shall nevertheless be excused. The.bail is not considered fixed until the capias is returned against the principal non est inventus, and filed upon record, and then they cannot be discharged. 4 Johnson's Rep. 407; Beekley vs. Cotton; I Jobnson's Rep. 505; 2 Moss. Rep. 485; Champion vs. inses. But the bail may plead a discharge, if the principal die before the capias is returned and filed of record. Coinyn Dig. (Q.). 2, (Q.) 52. “The death of the principal, at any stage of the proceedings be-fire the return of the capias ad satisfaciendum against the principal discharges the bail; and the hail. may take advantage of the death of the principal, either by pleading it in bar or by applying to the Court term time, or to a Judge in vacation, for permission te enter an exone-retur on the bail piece." See Peter'sdorf's Treatise , on Bail, 216,217. The Court will noW test the question before thera *by the principles here laid down. By a careful inspection and: Comparison of the acts -of 1807 and 1818, regulating the proceedings :11 cases of bail, and fixing the liability of the defendant and his sareties, it Will be perceived that the langUage of the two statutes are very similar, and the last act ..almost a literal, copy from the . first. In one instance the condition of
160 CASES IN THE SUPREME CPURT Lrrs,LE the bond is, in case judgment shall be given against the defendant. ROCK. July, 1833* " he will pay the debt or damages, as the case may be, and costs, and CHANDLER surrender himself in execution." .• In the Other, the condition is, that vp. alma, the defendant,in case .jadgMent toe:given 'against him, " will deliver . - to the plaintiff' the property, and pay ell datbages that shall be assessed for the detention there4 and, cog s of suit." By both statutes the Legislature makeSlit the dUty'or the , Sheriff, when the proper affidavit is filed by the:plaintiff . Withthe Clerk, to take the tiody of the defendant and cOrninit hini l to: Prison, or take a bond from such defendant, with sufficient secUritiesi,t0 his ':appearance. They call it in'each Of the acts a bond, and treat it as tail through-' out the whole proeeedings. :it is declared by the act of 1818 to be bail; and the-Clerk-in issuing the capias in detinue, is required to endorse On the Writ " the amount sworn to, and direct the Sheriff to take bail of the defendant in .double that sum." • The very words of the statute1 determine that it is bail. Admitting that the Court.may . be mistaken in this view of the case, let us now see what is the proper legal construction of the act. The , validity of the bond is . derived from and depends upon the authority of the act of the Legislature; and the liability of the defendant and his sureties cannot be enlarged- or diminished beyond its legal consequences. • That in an action of detinue it was the intention and object- of the Legislature only to hold the bail personally responsiblefor the principal isolivious, from the fact that , the law directs the Sheriff to take the body of the defendant, and not the property or specified thing sued for. .liad it been intended to make the sureties answerable in all events for the delivery . of the property, it would have directed . that the property itself be taken into custody, and not the body of the defendant. *Should the defendant refuse to give security according , to the requisitions of the act, has the Sheriff any right or authority to seize and retain possession of the property ? Certainly not. The liability of the defendant is then .wholly personal, and if that be the case, it cannot be contended that the securities are, liable .to a greater extent than their principal. What. are the terms of the bond; and how far is it binding? The securities do not -st;pulate that if judgment is rendered 'against the administrator, executor, or legal representative of the defendant, that they will deliver the property or pay the value of it, and damages; to the plaintiff. There is not even • any express words that they deliver the property in case judgment is rendered against the pthici.
OF THE STATE OF ARKANSAS. 161 pal, but the condition is, "that the defendant will deliver the property littoTgA to the plaintiff, and pay the damages for the detention, and costs of July , 1838. suit." Although there are no express terms,including the securities, CHANDLIII1 Va.. still this Court believe, upon a fair and just construction of the act, they DYED. are bound with their principal. How does the case now stand on the record? Briefly as follows: The plaintiff, Sarah Chandler, sued out a capias in detinue, for the recovery of the slaves in the declaration mentioned, and held the defendant, Alexander W. Cotton, with his sureties, Richard C. Byrd and John H. Cocke, to bail. Judgment was never given against Cotton in his lifetime, but the suit abated by his death, and was revived in the name of David Rorer, his administrator, against whom the plaintiff obtained judgment at the July term of the Superior Court in 1830. On this state of facts, the sureties in the bail bond are sought to be made liable. The replication assigns for a breach of the condition of the bond, that judgment was rendered against the administrator for the slaves in controversy, and that it remains in full force and effect, and unsatisfied. Does such an assignment constitute a good. breach ? There is no such stipulation or condition contained in the bond; nor is there any such implied covenant in the deed, arising from any just legal presumption. The statute gives validity to the bond, and the parties to it cannot he held responsible for any condition not contained in it, or deducible from its legal tenor and effect. In an action of detinue, the judgment iS in the vlternative, that the plaintiff do recover the goods, or the value thereof, if he cannot have the goods themselves, and his damages for the detention, and his full costs of suit. 1 Chit. Plead. 683; Tidd's Prac., 388. The form of the judgment in an action of debt, covenant, case, and the like, is essentially different from that in detinue; and this is the reason why the bail hond in each of the cases is made to correspond precisely with the respective judgments. The liability of the sureties on the bonds is the same, for the mere difference in the terMs of the expression that in case 4 judgrnent shall be rendered against the defendant, he Will deliver the property, and pay damages for the detention thereof, and costs of suit," or that " he shall pay 'the debt, damages, and costs, or surrender himself in execution," does not at all vary the legal effect of the two instruments. Suppose judgment had been rendered against the defendant in an action of detinue, could be not discharge himself and thereby exonerate his secuiities, by,paying the value of the property
162 CASES IN THE SUPREME:COURT Lirr ROCK, and Aamages for the detention, provided th • e , plainti . ff would accept the July, Ism same in thll satisfaction of his demand? „If the plaintiff release all CRAM, LZR claim against the defendant,.or receive accord and.satisfaction in lieu wrap. of his judgment, could- not the sureties plead either'of these facts in bar of the action brought against them for a , breach of the condition of the bond? • Would the plea be good? , That they would form a good bar cannot be doubted. If this be trite; then the bond sued on is not absolute and unconditional . for the &livery of the property or specific thing: If these plea§ be not good and sufficient in bar of the action, then might a plaintiff have two satisfactions for the same or one judgMent, whichis manifestly unjust and illegal.. SUppose after judgment given against the defendant. he had removed the slaves beyond the jurisdiction of the Court, or the plaintiff had elected to take the value of them,.or during the pendency of the suit they had died, would the sureties still have been bound, for their unconditional delivery ? Most surely not;_ for that would be holding them responsible on the bond for the performance . of a:condition which was possible at the time of making , it, but which afterWards might become impossible by the act of l od, the act of the laW, oi or the act of either theplaintiff or the de-. fendant, and the happening of any of these ,things will, says Black-stone, "discharge the condition and save the penalty." " For no prudence or foresight of the obligator could guard against such a contin gency." -Co. Litt. 206;, Black. Cora. 341. That the bail in Rich case is only responsible as in other actions, is:apparent from the , condition of•the obligation itself; and the evident' intention ,of the . Legislature.' Should the defendant : in the action re-fuseor fail tOtleliver the property, and should his bail become appre-bensive that he was not acting 'with good faith,:the law gives them a warrant . to.apprehend . him, that they may render him in discharge of their; . fiabili . ty:, . T . • hiS . , authority is' delegated to them for the purpose of indeninifyine;themSelves against fraud or loss; and this is the reason .they are:said tO:be.his guardians . and keepers, he being in legal contemplation„ in their custody: Now, what power havejhey over his administrator, or the property )f their printipal? None at all. Their guarantee is the good faith and , perSonal responsibility_of the defendantnd not that nf-his ministrator or legal representatives, Whom they . may 'not .. knOw, and whoa). they may be unwilling:to trust.. 'Had theban surrendered- their principal, either before , or 'after judgment,. would 'they not be diS-
OF THE STATE OF ARKANSAS. 163 charged, and would not the plaintiff in the action be in as good a condi- L i g s tion as if the Sheriff had first committed the defendant's body to prison? J uly . 3898. The surrender would certainly have discharged them, provided their crIANDLISII 178. responsibility haa not been previously fixed by the return of non est BYRD. inventus on the capias ad satisfaciendion. Admitting this to be true, then the sureties on the bail bond in the case now before the Court are only liable for the personal responsibility of their principal, as in other cases, The statute treats the obligation as a bail bond, and calls it such, and of course, the Court are bound to presume that it is one, and to apply to it the rules and principles that go;rern in other cases of a similar kind. The doctrine on the subject of bail is so clearly and incontroverti• bly established, and so well founded in reason and authority, that it cannot be easily mistaken or misapplied. The sureties at any stage of the' proceedings, may excuse theinselves from all liability, both before and after judgment, provided the bail be not fixed; as heretofore explained, by showing any thing by' ivhfch it appears that the defendant is relieved, for it is unjust " that the bail should continue responsible after the principal is discharged." Petersdorf on bail, 390. The bail may discharge themselves by pleading payment, release, accord and satisfaction, or any other matter that will show the plaintiff's demand was satisfied, or the surrender or death of the principal, in bar of the action. The defendant in this instance alleges that the condition of the bond was complied with, and that Alexander W. Cotton did, at the April Term of the Superior Court, in'and for the Territory of Arkan-sas, held in the year eighteen ,hundred and twenty-eight, appear and make good his claim to the slaves mentioned in the declaration, and that the suit was continued without any judgment having been given against him, until the 25th day of November, eighteen hundred and twenty-eight, as the record shows, and that on that day he died within the jurisdiction of the Court, and by reason of his death the writ abated, and that no judgment was given for said negroes, or any or either of them, against him during his lifetime, and in favor of Sarah Chandler, the present plaintiff. The demurrer to the plea admits these facts.— It has already been shown that the Obligation sued mils a bail bond to all intents and purposes, and that being the case the rule is uncon-tradicted 'and conclusive, that the death of the principal or the defendant exonerates and discharges the bail, and fornis a good bar to the action. The demurrer to the plea was then rightfully overruled. The
164 CASES IN THE SUPREME COURT LITTLE Rock, replication instead of responding to the plea and taking issue upon it, Ju ly, 1 838. entirely evades its legal conclusion, by setting up new matter in avoid-CRANDLER ance. If the plea is good in bar to the plaintiff's cause of action, then VS. EyED . the replication must be defective. The demurrer to the replication was then properly sustained. The plea fully answered the cause of action, for it alleged a fact which in the opinion of this Court wholly destroyed it, and set it out in such a manner as to show that the condition of the bond was fully and substantially complied with by the defendant, according to the requisitions of the statute. There then being no error in the record, the judgment of the Court below must be affirmed, with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.