SMITH, J., now, (February 5th, 1878,) delivered the judgment of the Court:

This is an action brought by Thomas A. Gavaza, on the 24th April, 1876, against the defendant, Charles H. M. Black, upon a bail-bond, executed by the said defendant, and one James H. Cutler. After issue joined the said Gavaza died, and the present plaintiffs, Norman A. Gavaza and T. Millege Gavaza, his administrators, were by suggestion, made the plaintiffs on the record.

The facts apparently being undisputed, and the right of the plaintiffs to recover resting solely on questions of law, a case was agreed upon by the counsel, which was submitted to, and argued before the Court during the present terin.

The facts, as presented by said case, are as follows:-The said James H. Cutler, on the 10th day of March, 1874, was arrested in the County of Halifax, by the Sheriff of said County, under a writ of capias, returnable at Annapolis, and directed to the Sheriff of Queens County, or to any other of our Sheriffs, and issued at Annapolis the 2nd March, 1874, at the suit of the said Thomas A. Gavaza, deceased. The said Cutler was released by the Sheriff of Halifax upon his giving the said bond, and a return made accordingly.

In the original suit, namely, the said suit of Thomas A. Gavaza against the said James H. Cutler, the venue was laid in Annapolis County, and after trial a judgment was recovered for $665.43, debt and costs, which was entered up in said County on 23rd June, 1875, but neither was the said judgment satisfied nor the said Cutler rendered in accordance with the condition of said bond. Previously to the issue of the writ in this cause, on the 25th January, 1876, an execution was sued out upon said judgment in the original suit against said Cutler, directed to the Sheriff of the County of Annapolis to be executed, and it remained in his hands for the period of sixty days, thereupon he returned to the said Court that the said Cutler could not be found within his bailiwick. The defendant then resided in Queens County. No execution upon said judgment was placed in the hands of the Sheriff of Halifax and the execution placed in the hands of the Sheriff of Annapolis contained no endorsements or directions to take the body of the said Cutler. The bail-bond was duly

assigned by the Sheriff of Halifax to the said Thomas A. Gavaza before action brought when he returned the writ of capias. It moreover appears by the case and exhibits, that on the 29th April, 1875, after issue joined, an order of a Judge was obtained for leave to amend the declaration. Previous to said amendment the first count of plaintiff's declaration set out that the defendant was one of the firm of Cutler, McLean & Co., doing business in Boston, in the United States of America, and that by their order for the payment of money directed to Messrs. F. and L. Burnaby, in Milton, N. S., they required them to pay the plaintiff $509.98, which said order being duly presented for payment was dishonoured. Then follow the common counts alleging the indebtedness of said Cutler, McLean & Co., to the plaintiffs. The amended declaration contains the common counts laying the indebtedness in Cutler, and varying the particulars from those previously furnished, which applied to the order only, by rendering them applicable to such added counts. The amount of claim remained the same, with the exception of $15.77, claimed in the first particulars for interest and expenses incident to the dishonor of the order.

It was contended at the argument by the defendant's counsel that the bail in this case was discharged.

1st. Because the arrest of Cutler, the original defendant, being made at, and by the Sheriff of the County of Halifax, and the condition of the bail-bond being that he should render himself, or be rendered by the defendant Black, into the custody of said Sheriff of Halifax, the execution should have been sent to such Sheriff.

2ndly. That the amendment of the declaration altered and increased the liability for which he had engaged to be responsible and for which the defendant, Cutler, was holden to bail.

3rdly. That there was no indorsement on the execution lodged with the Sheriff of Annapolis, directing him to take the body of Cutler.

I do not think the first ground taken can be sustained; and I come to this conclusion after a careful review of the authorities upon this important point of practice. In the 9th edition of Tidd, 1098, it is laid down that "the capias ad satisfaciendum against the principal should be directed to the

Sheriff of the County where the original action was laid." 1 Ch. Arch., 886, is an authority the same way. judgment in Robertson v. Goin et al., 5 U.

In delivering C., Q. B., 77, a similar practice is recognized by JONES, J. He says; the most convenient district for the bail to watch proceedings against the principal is that in which the venue is laid, and not in which the recognizance is taken; * for although the recognizance of bail may be taken in any other district, the place where the bail must watch or search proceedings to ascertain whether the ca. sa. has been issued would naturally be where the proceedings have been carried on. It cannot be required that the plaintiff should issue his ca. sa. in any other district, although the arrest may have been in another district, and the recognizance of bail be that the surrender shall be to the Sheriff of such district." I have no doubt but that the execution was properly placed in the hands of the Sheriff of Annapolis.

The second ground taken on behalf of the defendant would have presented much difficulty in the plaintiff's way had the facts of the case been furnished the Court in such a manner as to justify the application of the sound and reasonable proposition of law laid down by defendant's counsel. The case of Wheelwright v. Jutting, 7 Taunton, 304, establishes the principle, "that bail are not liable on their recognizance for any canse of action which is not stated in the affidavit whereon the defendant is holden to bail." And PARKE, B., very properly says, "I may agree to be bail for a friend on a bill of exchange, yet if he has been extravagant in taking up clothes from a tailor, I may say I choose to have nothing to do with it."

With this law I quite concur; it is but common sense and justice; but the facts in connection with the case are not so presented to us as to enable us to say whether this decision is in point. In that case the plaintiff had arrested the defendant, and in his affidavit to hold to bail he had not stated that the defendant was indebted to him on any other cause of action than on a bill of exchange. In his declaration he added a count for goods sold and delivered, (as in this case.) He obtained a judgment by default, and upon the execution of a writ of enquiry, he recovered for the goods sold, which were,

in truth, the consideration of the bill, and he gave no evidence on his count on the bill, and the counsel there contended, and very properly, that the plaintiff. having failed to prove the debt in the original action, for which alone the bail were -responsible, it could not be made to cover another debt, thereby transferring the liability of the bail to a debt for which they never engaged themselves. If the case here prepared, and from which alone we can gather the facts, had afforded us evidence of the nature of the debt sworn to in the affidavit upon which the capias issued, and had furnished some light with regard to the evidence given by the plaintiff at the trial of the original suit, or upon which count he obtained his judgment, the case of Wheelwright v. Jutting, might, or might not, be applicable. At present we are unable to ascertain It cannot for a moment be urged, I apprehend, that the mere fact of the addition of a count in a declaration, which may be abandoned, or under which no evidence may be offered at the trial, would discharge the bail. There is nothing before us to shew that the plaintiff resorted to his added count, and, therefore, non constat he may not have relied on his writ as originally framed and recovered for the very debt the bail engaged to become responsible for. For these reasons, 1 think this objection cannot prevail.

The point of practice raised by the defendant's third ground is one of much importance, and in the settlement of which little if any aid can be obtained from English decisions. Our writ of execution is grounded on the Provincial Statute of 1758, 32 G. 2. cap. 115, and may be considered as a combination of the fieri facias and capias ad satisfaciendum, under which the Sheriff is authorized to do what in England would require three writs to accomplish. Our colonial practice has dispensed wisely with this variety of forms, the real estate being put generally on the same footing as personal estate. This being the case we have now to consider whether an execution issued and placed in the hands of the Sheriff, with no other directions than those contained in the body of the writ, and returned by the officer non est inventus, is sufficient to fix the bail. The purpose the law has in view in requiring a ca. sa. to issue is obvious, namely, that the bail should be informed beyond doubt that the judg

ment creditor intends to proceed against the person of their principal, and with this object, in England, the writ of execution must be entered in a book kept in the Sheriff's office for that express purpose. The law is clearly and succinctly laid down in Chitty's Arch., vol. 1, p. 674, thus; "The bail are not bound to render their principal until they know from the species of execution the plaintiff may think proper to adopt, whether he intends to proceed against the person of their principal or not." 7 B. & C., 800, is also an authority to this effect. In the ca. sa. thus placed in the hands of the Sheriff, there is clear, unmistakable information afforded the bail of the intention that the plaintiff is looking to the person of their principal; it is impossible to be deceived. But does our writ of execution without endorsement apprize the bail with any degree of certainty that the person of the principal is intended to be proceeded against? This can hardly be contended when we examine its language. The Sheriff is directed, first, "that of the goods and chattels, lands or tenements of the said James H. Cutler, within your precinct, you cause to be paid and satisfied unto the said Thomas A. Gavaza, the aforesaid sum, &c., and for want of goods, chattels, lands, or tenements, &c., we command you to take the body of the said James H. Cutler." Under such instructions only, it is the universal practice to seek, in the first place, for goods and chattels of the execution debtor whereon to levy, and that there is anything in the language I have quoted indicative of the intention of the plaintiff to abandon any goods and chattels the principal may have had, and to look to his person, I conceive it would be useless to argue. It is true the law does not require in express terms that the directions should be indorsed on the writ, or that other than those contained in the body of it shall be given. Neither does it destroy the necessity of that ample notice to the bail of the intention of the plaintiff, the very object sought to be secured by the writ being placed in the hands of the Sheriff a prescribed number of days before its return. By the 265th sec., cap. 94, R. S., 4th series, it is rendered "competent for the party suing out the writ of execution to direct by indorsement in what manner it is to be executed, which direction the officer must obey." Does this not mean to meet the difficulty which might reasonably occur from the