majority">Sanford, J.

This is an action of debt, on a recognizance of special bail for Horace Booth and Harriet his wife, in an action of slander for words uttered by the wife, in which action Hall, the present plaintiff, recovered judgment on the 12th of March, 1856. Both of the defendants were then in this state, but, at the end of three days after judgment, said Harriet left the state, and did not return to it until after the lapse of more than sixty days from the rendition of the judgment—after her husband had been committed to prison on the execution, and discharged as a poor debtor—and after the execution had been returned with the officer’s indorsement of non est as to the wife, and of his levy upon and commitment of the husband—though before the session of the court next after that in which the judgment was rendered. The execution was in fact taken out on the 8th of May, 1856, delivered to the officer for service on the 9th, levied on the husband on the same day, and returned on the 12th of the same month. How long the husband remained in prison does not appear, but, as he was discharged as a poor debtor, he must have remained there until the 17th of May at least. (Rev. Stat., tit. 43, § 33.) It is found also, that when the wife returned the officer was notified of the fact, and that she was destitute of property.

Upon these facts the defendants claim that the plaintiff *494is not entitled to recover, because, the husband having been committed to prison and discharged therefrom in due course of law, the wife was not liable to imprisonment, and consequently her bail was discharged; and that, if her bail is liable at all, he is liable for nominal damages only, it being found that she was destitute of property.

We can not assent to the defendants’ claim. When the judgment is against husband and wife, the execution must follow the judgment, and if the nature of the action is such as to warrant the issuing of a ca. sa. against unmarried persons, that must go against both of the defendants as .in other cases. 2 Kent Com., 150. 1 Sw. Dig., 29, 30. 2 Bright on Husband and Wife, 83. 2 Arch., Prac., 159. The doctrine advanced in 3 Blackstone’s Commentaries, 414, that the ca. sa. should issue against the husband alone, has not been universally recognized as law, and has never been sanctioned by any direct decision of this court. No authority is cited in support of it, except an anonymous case in Cro. Car., 513, which, according to Ld. Denman, Ch. J., in Newton v. Boodle, 9 Ad. & EL., N. S., 963, “ is not very satisfactory and a little contradictory; ” and the dictum of Blaekstone is, in the case last mentioned, denied by the whole court. See also Langstaff v. Rain et ux., 1 Wils., 149, and Anon., 3 id., 124. So in New York it is held, (McKinstry v. Davis and wife, 3 Cow., 339,) that the wife is liable to be imprisoned on a ca. sa. with or without her husband, though it is otherwise as to mesne process. And so is the law in Massachusetts. Commonwealth v. Badlam, 9 Pick., 362. The wife then was liable originally to be taken in execution.

But it is claimed, that the husband having been discharged and no longer liable to imprisonment on the execution, the wife could not then be taken. If however, as we have seen, the wife may be imprisoned on a ca. sa. without her husband, it is not easy to see how, on principle, the husband’s discharge as a poor debtor, at any time, can furnish a legal reason for the exoneration of the wife. It is true, that when the wife is taken in execution on a judgment against her and her husband, if she has no property out of which the *495judgment can be satisfied, the court of Queen’s Bench in England will generally order her to be discharged. 2 Arch. Prac., 159. But Chief Baron Pollock, in Benyon v. Jones, (15 Mees. & Weis., 566,) said:— The practice appears to be of very recent date, and to rest on no principle whatever. The writ of ca. sa, is the right of the plaintiff, as the result of his judgment, and it must be admitted that the practice is rather making the law than administering it.” And it seems to be agreed, that the motion for the wife’s discharge is addressed to the equitable discretion of the court, and is granted, if at all, ex gratia, and not as a matter of strict legal right. Edwards v. Martyn, 33 E. L. & E., 86, 87.

No such practice has obtained in this state. It is the right of the party to have his execution follow the judgment, and the wife, when taken in execution, can be relieved only in the same manner as other execution debtors are relieved. Our courts have never assumed the power to discharge in this summary way, and we think the exercise of such a power by our law unjustifiable.

By our law then, the same legal principles which determine the liabilities of special bail in other .cases, are applicable in the case of a married woman. The creditor is de jure entitled to his remedy against her person, and the responsibility of special bail for her is the same as for any other defendant.

The obligation of bail arising, as it is said by Ch. J„ Hosmer, in Edwards v. Gunn, (3 Conn., 318,) from contract and the law conjointly, his privilege is extended beyond the express condition of his bond, so that, in order to subject him on his undertaking, there must be not only a non-performance of his contract according to its terms, but also an avoidance of the principal and a return of non est on the execution. The return of non est is prima facie evidence of an avoidance, but is liable to be falsified; and if made without the exercise of common and ordinary diligence on the part of the officer to arrest the debtor, will be deemed and held fraudulent and void. Whether such diligence has been exercised in the particular case or not, is generally a question *496of fact, depending upon all the circumstances. Beebe v. Gardner, 11 Conn., 104. Edwards v. Gunn, 3 id., 318.

From the facts appearing in this case, we can not find any want of diligence in the officer, or of fairness in the creditor, in relation to the arrest of Mrs. Booth on the execution. It is to be recollected that, immediately upon the rendition of his judgment, the plaintiff was entitled to an execution returnable in sixty days, or to the next term of the court, at his election, and that, at the end of three days only after judgment, Mrs. Booth left the state, and remained out of it for more than sixty days, and until after the commitment and discharge of her husband, and after the return of the execution. No laches has been or can be imputed to the plaintiff for not taking out, and attempting the levy of, his execution within the three first days after judgment, and, during the next succeeding sixty days, an execution against Mrs. Booth would have been useless, for she was beyond its reach. When the execution was taken out she was still absent, and, so far as we can discover, nothing indicated that she intended to return. Search was made for her on the 9th of May without success, and, when the execution was returned on the 12th, she was still absent; and we can not find that the return of the execution was not made in good faith and after the exercise of reasonable diligence.

No law requires the officer to retain the execution until the last day of its existence. In Collins v. Cook, (4 Day, 1,) the officer returned his execution twenty days before it ran out; and the court say, “ the inquiry is not, whether after the return there was not so much time that the officer might have safely held- the execution longer and then have had time to return it, but, has the principal avoided, and has the bail had a reasonable time to have surrendered up the principal before the return of the execution.” If the execution is returned before the return day, the bail can take no advantage of such return unless he shows that be was prejudiced thereby. Fitch v. Loveland, Kirby, 380. If, indeed, the bail render the body of the* debtor, or he render himself to the officer, to be taken on the execution, at any time before the *497return day, the bail will be exonerated, because in such a case he would be prejudiced by the too early return. Fitch v. Loveland, supra. Edwards v. Gunn, 3 Conn., 316. But in this case no such render was made. Mrs. Booth did indeed return to Bridgeport before the next session of the court, that is, before the third Tuesday in July, (how long before does not appear,) and the officer was notified of her return. But she was not tendered to the officer; he was not requested to arrest her; and it does not appear that the officer, by the use of any diligence, or by any lawful effort, could have arrested her, for, though in Bridgeport, she might have been secreted there, or protected in her castle by its outer door; and it does not appear that the officer was even informed where in the city she could be found. Had the surety desired her arrest, he might have arrested and tendered her to the officer during the life of the execution, disregarding all obstacles interposed for her protection, but he made no effort to arrest her, and no request to have her arrested.

But again, it does not appear that she even returned to Bridgeport during the life of the execution. It is found that she returned before the next session of the court, but not how long before; and we are not authorized to presume that the execution, taken out on the 8th of May, was returnable to the next court, rather than within sixty days next coming after its date, in the ordinary way.

If we were at liberty to conjecture, we might say that it seems not improbable that Mrs. Booths’ return was in fact after the return day of the execution, or, if it was before, that both the principal and the bail, instead of voluntarily tendering her to the officer, in order that she might be arrested and the bail thus exonerated, chose to cast upon the officer the whole responsibility of taking her if he chose, and if he could, while they reserved the opportunity to set up in their own defense the negligence of the officer if he did not take her, and of insisting that she was not liable to be taken, if he did. We need not add that the law will sanction no such conduct. While it requires, both of the creditor and the officer, the utmost fairness in their proceedings in order to *498subject- the bail, (Johnson v. Smith, 1 Root, 374,) and while it makes it the duty of the officer to exert himself diligently and faithfully for the apprehension of the debtor, and holds that, without the exercise of such diligence, a return made to subject the bail is fraudulent and void, and that even if made fairly before the return day, it is at the risk of the officer, and will be of no avail if before that day the bail render the body of the debtor, or he render himself to the officer to be taken on the execution, it also declares that the bail can not complain of such return before the return day unless he is prejudiced thereby. Fitch v. Loveland, Collins v. Cook, Edwards v. Gunn, Newel v. Hoadley, Beebe v. Gardner, supra. And surely the bail can not complain of the officer’s omission to apprehend the principal, if, (which we do not mean to assert,) that omission was the natural, probable and intended consequence of his own negligence or duplicity.

The question in this part of the case is, whether there was an “ avoidance ” of the officer and the execution by Harriet Booth. The officer’s return is prima facie evidence of such avoidance, and in our judgment that return is not falsified by any thing that appears in the case before us.

The rule of damages indicated by the statute, (Rev. Stat., tit. 1, § 42,) and sanctioned by our practice, is the amount of the judgment recovered against the defendants in the original suit, with interest thereon from the return of the non est on the execution, together with the cost of the execution and the officer’s fees thereon.

And for the amount of those sums, we advise the superior court to render judgment in favor of the plaintiff in this case.

In this opinion the other judges concurred.

Judgment for plaintiff advised.

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