Fisher v. Drewa

-Sherwood, J. This action is brought upon a bond to the [656] sheriff of "Wayne county, given by the defendant Louis-; Easier to obtain his release from arrest on a capias ad respondendum,, and for his appearance in the cause. Special bail was not given. The plaintiff in the suit wherein the writ issued proceeded-to judgment, and, after execution, returned unsatisfied,., against property, took an assignment of the bond to the sheriff, and now brings her suit thereon, in pursuance of section 7323, How. Sfcat., and was allowed to recover judgment against the defendants for the sum of $500. On the trial at the circuit the defense urged was that the-action would not lie, a ca. sa. never having been issued against, the defendant in the suit in which the bond was given; and. this is the question now raised before us for review. Under the decisions of this Court heretofore made, I think, the position taken by defendants’ counsel must be sustained.. In the original suit, the plaintiff, it would appear, was-satisfied with the appearance bail taken, and did not take-her assignment of the bond until after judgment had been, rendered. In such case, as the practice now exists, and. under the statutes, the appearance bail continue liable in the same manner as special bail, and are entitled to the same-defenses as would be available to special bail had it. been given; and it would be difficult to give any good reason why they should not be so. C. C. Rule 20; DeMyer v. McGonegal, 32 Mich. 120; Wilcox v. Ismon, 34 Id. 268; 1 Green, Pr. 441. Mr. Justice Cooley, in Wilcox v. Ismon, says: “The sureties were responsible to the same extent that the.special bail would have been had any been entered.” Mr. Justice Graves says, in 32 Mich.: “The right to surrender ought to continue until, in regular course, an execution against the body fails.” I cannot believe that it was ever intended by the Legislature and the Court to cast upon the appearance bail all the-. [657] obligations of bail to the action, and at the same time deprive them of the means of mitigation and defense ■secured to the latter. By section 7332 of Howell’s Statutes it is provided that no suit can be brought against special bail until an execution against the body has been issued, and return thereto made by the sheriff that the defendant cannot be found. This was not done, and this defense’, in my judgment, was well made in this case. The judgment should therefore be reversed, and the case dismissed, with costs. The other Justices concurred.