Henry Lane versus Barney Smith.
Whether debt will lie on a bail-bond, quaere. But if it will, the action must be brought within one year after final judgment against the principal.
Debt upon a bail-bond, taken by the plaintiff, as constable, in a suit brought by one Winthrop against one Clapp, the principal in the bond. The defendant was the only surety.
*300The defendant pleaded in bar, that the plaintiff did mot commence his action within one year next after entering up final judgment in the action against the principal, as required by St. 1784, c. 10. To this there was a general demurrer.
B. Parsons in support of the demurrer.
Debt will lie on a bail-bond. Milner v. Petit, 1 Ld. Raym. 720 ; Ward v. Griffith, ibid. 83 ; Commonwealth v. Green, 12 Mass. R, 1 ; Bean v. Parker, 17 Mass. R. 602 ; Com. Dig. (Hammond’s ed.) Bail, R 1, note i ; and there is no limitation, under twenty years, for bringing the action. The provision in St. 1784, c. 10, § 3, “ that no scire facias shall be served upon the bail, unless it be done within one year next after the entering up of final judgment against the principal,” does not apply to the action of debt. The remedy by scire facias is cumulative, and was intended for the benefit of the creditor, not of the bail. If the statute has not done away the action of debt on a bail-bond entirely, there is no pretence for saying that it has limited the time for bringing such action. It is the duty of bail to see that the money is paid, or the principal surrendered, and he has no more ground of complaint than sureties in other sorts of bonds, for being held responsible twenty years. In the. colony law of 1650, Anc. Charters &c. 51, bail are made answerable until the execution is discharged or satisfied, or the principal surrendered, but no mode of proceeding against bail is provided. It is presumed therefore that debt was the only remedy. If debt however will not lie on a bond taken according to St. 23 Hen. 6, c. 10, since this bond is signed by one surety only, it is not a bail-bond under the statute, but it is a good bond at common law; Clyfton v. Web, Cro. Eliz. 808 ; Blackbourn v. Michelbourn, ibid. 852 ; Cotton v. Wale, ibid. 862 ; Beawfage’s case, 10 Co. 101 ; Blakebone v. Browne, Noy, 39 ; Long v. Billings, 9 Mass. R. 482; and the remedy must therefore be according to the common law, and a scire facias could not be supported on this bond.
S. Dexter, for the defendant,
insisted that this was a bond taken pursuant to the statute ; otherwise it would be void, *301being for ease and favor. 1 Churchill v. Perkins, 5 Mass. R. 541 ; Rice v. Hosmer, 12 Mass R. 127 ; Long v. Billings, 9 Mass. R. 479 ; 1 Esp. N. P. (Gould’s ed.) part 2, p. 23, et seq. ; Tidd’s Pr. 197. Debt does not lie on a bail-bond in this country, and never did. Colony Law of 1672, Anc. Charters &c., 193 ; St. 5 W. M. c. 5 ; St. 4 Anne, c. 3 ; Pierce v. Read, 2 New Hamp. R. 359 ; Hunter v. Hill, 2 Haywood, 223 ; and in England scire facias is the usual and proper remedy. Bac. Abr. Scire Facias, C 7. If debt would lie here, the bail would be entitled to the custody of his principal for twenty years. Swett v. Sullivan, 7 Mass. R. 347. It was however manifestly the intention of our legislature, to limit the time for pursuing bail to one year:
Parker C. J.,
in giving the opinion of the Court, said, m substance, that there was abundant authority that in England debt will lie against bail. But if debt may be brought here, (which question we do not decide,) we think it was evidently the intention of the legislature, and according to the usage of the country, that the action should be brought within one year. It is true, the statute of 1784 says nothing about debt, but it is entitled, “ An act regulating Bail in Civil Actions,” and the legislature no doubt thought that the whole subject was before them. Under the colonial system it should seem,, that at one period no way was provided for proceeding against bail. It was provided only, that they should be answerable for one month after judgment against the principal. Anc. Charters &c., 193. Afterwards, in 1672, it was provided that the party and sureties being called and the bond being declared forfeited upon non-appearance, the case should proceed to hearing and judgment, as in case of the defendant’s non-appearance upon attachment of goods ; and if the case should be found for the plaintiff, that execution should issue against the defendant and his sureties, to be in force against the sureties for one month after judgment given. Ibid. So the law continued until the St. 5 W. &
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M. c. 5, which contains provisions resembling those of the statute now in force. The legislature having there given a new remedy by scire facias, which is to be served upon the surety “ within twelve months after the first trial, and not afterwards,” it is not reasonable to suppose that they intended to make the surety liable for a longer period in a different form of action. In the case of Rice v. Carnes, 8 Mass. R. 490, the Court say, “ if the plaintiffs neglect to sue out their execution, and obtain a return thereof, so as that their scire facias be not served upon the bail within a year from the rendition of the judgment, the bail will be discharged of course.” And there are several cases of scire facias, in which the Court seem to consider that it was the intention of the legislature to limit the suing out of process against bail to one year. If.it were not so, mischievous consequences would follow. The bail are fixed on a return of non est inventus on the execution. If an action may be brought against them fifteen or twenty years afterwards, they will often have to pay the debt on account of the death of the principal. Again, in cases of small amount the debtor often gives security to the officer, and after the expiration of the year the security is returned ; but if this action can be sustained, it will be necessary, for the officer’s protection, to retain the security many years.
It is said that this is not a bail-bond under the statute, be cause there is but one surety. It is true that the officer cannot, by taking such a bond, discharge himself from an action by the party for negligence, but it is equally true that the party may make use of it as a bail-bond.
Plea adjudged good,