Davidson and Another, Plaintiffs in Error, against Taylor, Defendant in Error

[Practice.] Davidson and Another, Plaintiffs in Error, against Taylor, Defendant in Error. The bail is fixed by the death.of the principal after the return of the.ca. sa. and before the return of the scire facias; and the bail is not entitled to an exoneretnr in such a case. Jan. 31st. THIS cause, was' argued by Mr. Jones for the plaintiffs, in . error, and by Mr. Coaie for the defendant in error [MAJORITY — . Mr. Chief Justice Marshall] . Mr. Chief Justice Marshall delivered the opinion of the Court. This is a case of bail, and is tó be decided by the princi - ples of English law, which the cáse finds constitute also the law and practice of Maryland, on the subject. According to these principles, the allowance of the bail to surrender the principal after the return of a ca. sa. is considered as a matter of favour and indulgence, and not of right, and is regulated by the acknowledged practice of the Court. To many purposes, the bail is considered as fixed by the return of the ca. sat But the Gourts allow the bail to surrender the principal within a limited period after the return of the scire fadas' against them, as matter of favour, and not as matter pleadable in bar. In certain cases even a formal surrender lias not been required, where ibe principal was still living, and capable of being surrendered, arid an eaionersiw.would be entered, and the principal discharged immediately upon the surrender. But the rule has never been.applied to cases where the principal dies before the return .of the scire facias. In such a case, the bail is considered as fixed by the return .of the ca.' sa., and his death afterwards, and before the return of the scire fa'das, does not entitle the bail toan exone-. retuv. , The plea is. therefore, bad; and the judgment is affirmed, with six per centum damages, and costs.