Taylor, J.
From the record, it appears, that the defendants in error, had sued out a writ of attachment, against Littleton Busby, which was levied on [423] some com, and other property; that the property was afterwards replevied by one Christian Busby, .who gave bond to the sheriff, with the plaintiffs, as securities, conditioned, that the said property should be produced, when required, ready to satisfy such judgment as might be rendered, and should be held, ready, to abide such order as might be made concerning the same, by the court: or, in failure thereof, the said Christian Busby, should pay and satisfy-such judgment as might be rendered against the said Busby in said attachment,” &c.'
The suit was prosecuted to judgment against Lit-tleton Bushy; and the scire facias, in this case, has been sued out, against the obligor, in the replevy bond: and, not having been executed on Christian Busby, the suit has been discontinued, as to her, and prosecuted to judgment, against the plaintiffs in error.
Various objections have been made, to the proceedings below, all of which, it is not necessary to consider; but, such will be noticed, as are deemed important, in settling the practice, on such points as •have been taken.
The first objection, taken to the proceedings, is, that the suit, on the replevy bond, could not be commenced by scire facias.
The fourteenth section of the act of 1807, entitled, “an act, directing the method of proceeding, in courts of common law and equity, against absconding debtors, and other . absent defendants,”a provides, “ that it shall be lawful, for any person, against whose estate any attachment hath issued, as aforesaid, his, or hér attornej'-, agent, or factor, at- any time, before final judgment entered, or writ of inqui-. [424] ry executed, upon giving special bail, to replevy the estate, so attached, and plead to issue,” &c.
From this, it appears, that the process of attachment, was intended, by that act, to have the same effect, with a capias ad respondendum, upon which bail is required — that is, to bring the defendant into court, to answer the complaint; and, to secure the satisfaction of the judgment, which might be recovered, either by the sale of the goods, or imprisonment of the body of the defendant.
It is necessary, then, to ascertain, what course of proceeding is .authorised against special bail, by our laws. All bail, taken upon the service of the original process, in a suit, in this Slate, is special bail : this is expressly declared, by act of assembly. In England, the mode of proceeding against special ■bail, is, by scire facias. Ther<j, appearance bail, is discharged by the defendant’s giving special bail, which is done in court, by recognisance; and, as this recognisance is of record, a scire facias is, of course, the proper remedy, upon it.
It is probable, that the same remedy would have been recognised, upon a bail bond, in this State, without any particular provision upon the subject. However this may be, we are not left to give the" remedy, by construction, as the'statute is plain and explicit, on the subject.
■ The seventh section of the act of .1807, entitled, ;-“an act, concerning bad, in civil cases,”a provides, “ That all bail, taken according to the directions of this act, shall be deemed, held, and taken as special bail; and, as such,'be liable to the recovery of the plaintiff. But the plaintiff shall not proceed against such bail, until execution hath been returned, that [425] that the defendant is not to be found in. his propel* county, when the plaintiff may proceed against such, bail,- as is usual to proceod against special bail in other cases. And the bail shall have liberty at any time before the return of the firs.t scire facias against them returned scire feci, or of the second returned nihil, to reliefer his principal in discharge of the bail,” &c. ‘ i
It is evident that a scire facias would have been the proper remedy on a bond to replevy the proper-, ty, given by the defendant to an attachment, under the act of 1807.
In 1818, an act was passed, entitled “an act for the better regulation of judicial proceedings,” the tenth section of which is in the following woi'ds:
“ .Whenever the property of an absconding debt- or shall be attached, it shall not be replevied, unless the security'in the replevy bond shall undertake to return the specific property attached, or pay and satisfy such .judgment as may be rendered against the defendant.”
This act, it is contended, entirely changes the nature of the bond, takes it out of the operation of the statute concerning bail, and leaves the party (o per-sue the common law remedy.- But why should it have this effect? The bond is taken by the sheriff in the same way it was 'previously; the only difference is a change in the condition, putting the plaintiff in a more advantageous situation than the one he occupied before. It was intended for the plaintiff’s benefit, and it would be an incorrect construction to determino that an act having this object, required a more circuitous mode of proceeding than he was previously entitled to.
[426] "0f0!iO„ rdl. The deí^daato proceed by scare facias.
It is next objected, that the discontinuance of the suit as to Christian Basby, operated a discontinu-
ance of the whole action, as there is no statute au-thorising a discontinuance as to one of the parties to a suit commenced by scire facias.
The objection of the. plaintiffs in error is understood to rest, on this ground; that to authorise the proceedings by scare facias, the court must consider the bond.upon winch it in founded,- a record, and that a plaintiff cannot discontinue as to one of the defendants, when a record is the foundation of the action.
The statute'declares, in substance, “that when any suit is brought against t\Vo or more obligors, &ct to any bond, &c., and process shall not be executed upon one or more of such obligors, &e. the plaintiff may- discontinue as to such as are not served with process, and proceed to judgment against the others.”
This proceeding is certainly upon a land-, it is so styled in the act which authorises it to be taken; bail are required to enter into bond; and, because' a new remedy is authorised, it, cannot change the nature of the instrument, although that bond may have the character of a record.
The court, therefore, did right in discontinuing as to the defendant, upon whom service of process had not been perfected, and proceeding against the others. .
It is next objected that there was error in sustaining'the demurrer to the second and third pleas.
These pleas alleged that the property levied upon, did.not belong to Littleton Busby, the defendant [427] to the attachment, but to a third person, who took it into his possession, by which means the plaintiffs were prevented from having it forthcoming to answer the judgment of the court.
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Taylor, J.
From the record, it appears, that the defendants in error, had sued out a writ of attachment, against Littleton Busby, which was levied on [423] some com, and other property; that the property was afterwards replevied by one Christian Busby, .who gave bond to the sheriff, with the plaintiffs, as securities, conditioned, that the said property should be produced, when required, ready to satisfy such judgment as might be rendered, and should be held, ready, to abide such order as might be made concerning the same, by the court: or, in failure thereof, the said Christian Busby, should pay and satisfy-such judgment as might be rendered against the said Busby in said attachment,” &c.'
The suit was prosecuted to judgment against Lit-tleton Bushy; and the scire facias, in this case, has been sued out, against the obligor, in the replevy bond: and, not having been executed on Christian Busby, the suit has been discontinued, as to her, and prosecuted to judgment, against the plaintiffs in error.
Various objections have been made, to the proceedings below, all of which, it is not necessary to consider; but, such will be noticed, as are deemed important, in settling the practice, on such points as •have been taken.
The first objection, taken to the proceedings, is, that the suit, on the replevy bond, could not be commenced by scire facias.
The fourteenth section of the act of 1807, entitled, “an act, directing the method of proceeding, in courts of common law and equity, against absconding debtors, and other . absent defendants,”a provides, “ that it shall be lawful, for any person, against whose estate any attachment hath issued, as aforesaid, his, or hér attornej'-, agent, or factor, at- any time, before final judgment entered, or writ of inqui-. [424] ry executed, upon giving special bail, to replevy the estate, so attached, and plead to issue,” &c.
From this, it appears, that the process of attachment, was intended, by that act, to have the same effect, with a capias ad respondendum, upon which bail is required — that is, to bring the defendant into court, to answer the complaint; and, to secure the satisfaction of the judgment, which might be recovered, either by the sale of the goods, or imprisonment of the body of the defendant.
It is necessary, then, to ascertain, what course of proceeding is .authorised against special bail, by our laws. All bail, taken upon the service of the original process, in a suit, in this Slate, is special bail : this is expressly declared, by act of assembly. In England, the mode of proceeding against special ■bail, is, by scire facias. Ther<j, appearance bail, is discharged by the defendant’s giving special bail, which is done in court, by recognisance; and, as this recognisance is of record, a scire facias is, of course, the proper remedy, upon it.
It is probable, that the same remedy would have been recognised, upon a bail bond, in this State, without any particular provision upon the subject. However this may be, we are not left to give the" remedy, by construction, as the'statute is plain and explicit, on the subject.
■ The seventh section of the act of .1807, entitled, ;-“an act, concerning bad, in civil cases,”a provides, “ That all bail, taken according to the directions of this act, shall be deemed, held, and taken as special bail; and, as such,'be liable to the recovery of the plaintiff. But the plaintiff shall not proceed against such bail, until execution hath been returned, that [425] that the defendant is not to be found in. his propel* county, when the plaintiff may proceed against such, bail,- as is usual to proceod against special bail in other cases. And the bail shall have liberty at any time before the return of the firs.t scire facias against them returned scire feci, or of the second returned nihil, to reliefer his principal in discharge of the bail,” &c. ‘ i
It is evident that a scire facias would have been the proper remedy on a bond to replevy the proper-, ty, given by the defendant to an attachment, under the act of 1807.
In 1818, an act was passed, entitled “an act for the better regulation of judicial proceedings,” the tenth section of which is in the following woi'ds:
“ .Whenever the property of an absconding debt- or shall be attached, it shall not be replevied, unless the security'in the replevy bond shall undertake to return the specific property attached, or pay and satisfy such .judgment as may be rendered against the defendant.”
This act, it is contended, entirely changes the nature of the bond, takes it out of the operation of the statute concerning bail, and leaves the party (o per-sue the common law remedy.- But why should it have this effect? The bond is taken by the sheriff in the same way it was 'previously; the only difference is a change in the condition, putting the plaintiff in a more advantageous situation than the one he occupied before. It was intended for the plaintiff’s benefit, and it would be an incorrect construction to determino that an act having this object, required a more circuitous mode of proceeding than he was previously entitled to.
[426] "0f0!iO„ rdl. The deí^daato proceed by scare facias.
It is next objected, that the discontinuance of the suit as to Christian Basby, operated a discontinu-
ance of the whole action, as there is no statute au-thorising a discontinuance as to one of the parties to a suit commenced by scire facias.
The objection of the. plaintiffs in error is understood to rest, on this ground; that to authorise the proceedings by scare facias, the court must consider the bond.upon winch it in founded,- a record, and that a plaintiff cannot discontinue as to one of the defendants, when a record is the foundation of the action.
The statute'declares, in substance, “that when any suit is brought against t\Vo or more obligors, &ct to any bond, &c., and process shall not be executed upon one or more of such obligors, &e. the plaintiff may- discontinue as to such as are not served with process, and proceed to judgment against the others.”
This proceeding is certainly upon a land-, it is so styled in the act which authorises it to be taken; bail are required to enter into bond; and, because' a new remedy is authorised, it, cannot change the nature of the instrument, although that bond may have the character of a record.
The court, therefore, did right in discontinuing as to the defendant, upon whom service of process had not been perfected, and proceeding against the others. .
It is next objected that there was error in sustaining'the demurrer to the second and third pleas.
These pleas alleged that the property levied upon, did.not belong to Littleton Busby, the defendant [427] to the attachment, but to a third person, who took it into his possession, by which means the plaintiffs were prevented from having it forthcoming to answer the judgment of the court.
The defence attempted to be -set up in these pleas is surely not a good oeo. The plaintiffs are estop-ee! by their bond, from contesting the right of the defendant in the attachment to the- property. . They had undertaken to have it forthcoming; it was their duty to comply with their obligation, and leave it to the plaintiff in the attachment and tho claimant of the property to litigate their rights; not 'to take it. out of the possession of the plaintiff to the attachment, and put it into that of an adverse claimant, and thus. excuse themselves for a breach of their covenant.
The order poraodt&g the amendment is next assigned as erroneous. '
As respecto the time at which, an amendment may be permitted, it is a matter of discretion with the court, if it can authorise it at all. The time at which it was permitted, in this instance, therefore, cannot render the act illegal. But it is insisted there was nothing to amend by.
The sheriff is required to return the bail bond, (to which replevy bonds, we have peen, are assimilated,) into the office of the cleric of the court, witjh the writ. It follows, that he is bound, to make return of the reple-vy bond- — although, it may, sometimos be executed,, after the writ of attach raen i. Uus boon returned.— He must mails retara ci tt, lo To proper be filed, with tho paayi n necessarily, has the hood ooforo t iMT.a* !y m. ;hs clerk, non ne issues tbe scire facias? together with the judgment, and pro[428] ceedings in the attachment. If he makes a mistake, in reciting any of them, the bond, ,&c. are there, by which to amend. This constituted no error.
It is, also, assigned, as error, that judgment was rendered, for want of a plea, when there was a plea filed, and undisposed of, upon which issue had been joined.
It appears, that the plea of non est factum, was filed, and an issue made up, thereon, subsequent to which, the court permitted that part of the señe fa-cias which contained the description of the bond, to be amended, as to'the date of the bond. This amendment was made after the jury was sworn, and the objection made to the bond, intended to be taken under the plea, which was the error, in the recital of the date.
The plea afforded no answer to the amended scire facias, although the plaintiffs in error might be willing to make affidavit to a plea of non est factum, to the bond, described in the original scire facias — yet, it is not to be presumed, they wished that affidavit to be applied to a bond, altogether different to the one, they had sworn was not executed by them. But, if they had been willing to do so, this is not a matter to be left to inference. It’ is a self-evident fact, that the affidavit was not made, in relation to the bond; described, in the amended scire facias; that the plea does not deny the execution of that bond, by the defendants — and, therefore, is no answer to the action. Therefore, the Circuit court did not err, in rendering judgment, for want of a plea.
The last objection which will be noticed, is that, there was no assignment of the replevy bond, to the defendants in error.
[429] Ic bond was executed to the sheriff. Tixo statute does tia prescribe, to whom it shall be executed; bnt, as it is a sabslit.u,e for- the bail bond, and, to bo governed by the same rules, which are applicable to that, it, should be made payable, to the same person. Thero is, however, no direct provision, in this respect, in regard to the bail bond, itself; but, the inference is irresistable, that it is to be taken to the sheriff.
It is required,wby the second section of the act, of 1807, “concerning bail, in civil cases,” thatthe sheriff shall take the bail bond, and return it, with the writ; and, the third section declares, “ that all bail bonds, returned to any of the said courts, shall be assigned, by the sheriff, or other officer, returning the same, by indorsement thereon, in the form following, to wit: “ I, A. B., sheriff of the county of -, do hereby assign the within obligation and condition,, to C. D. his executors and administrators, to be sued for, according to the statute, in such cases, made and provided.” The indorsement must be made by the obligee, for it to vest, in the assignee, the right to sue in his own name.
- Under the construction, previously given to the laws, regulatiug replevy bonds, it results, that this provision, relative to bail bonds, is applicable to them; and, that it is the duty of the sheriff, to make the in-dorsement on them, which would vest the legal interest in the plaintiff in the attachment. Without such an assignment, it is evident, that the party interested, could not maintain a scire facias, on a bail bond— and it is equally so, that he cannot, on a replevy bond.
[430] It is said, it is hard to reverse the judgment, on this ground, yhen every thing would be effected, without the indorsement, that could be with it. This may be true — -but the rules of law must be complied with. The defendant in error certainly had no legal right to the bond, without assignment.: if the scire facias had been in the name of the sheriff, for the use of the defendant in error, it would'have presented a different question.
It would be a hardship, to non-suit a plaintiff, or reverse his judgment, who had sued in his own name, upon an instrument,' transferred to him, by delivery; yet, it would have to .be done: and, in this case, the same rule must prevail.
Because the legal interest in the bond is not vested in the defendant in error, the judgment must be reversed.