White's Ex'rs v. Cummins
| Decision Date | 30 November 1806 |
| Citation | 1 Tenn. 224 |
| Parties | WHITE'S EXECUTORS v. CUMMINS. |
| Court | Tennessee Circuit Court |
OPINION TEXT STARTS HERE
Cummins was bail for Steagall, in a suit commenced in the County Court of Davidson, by the plaintiff against Steagall; sci. fa. issued there against the defendant, to which he pleaded the death of the principal, after the return of the ca. sa. and issuing of sci. fa., but before its return. Demurrer and joinder. Judgment for defendant, and appeal to this court.
Dickinson and White, in support of the demurrer, urged that the law of England was clear in this respect. That after the return of a ca. sa.the death of the principal would not discharge the bail; it must be an actual surrender. d1
If this were a good plea, it ought to have been pleaded puis darrein continuance, and in bar. The plea is therefore bad on that ground.
Stuart and Searcy, for the defendant.
Agreeably to the English authorities, we admit that the death of the principal, after the return of the ca. sa., is not a discharge of the bail; but our Act of Assembly has altered that part of the common law. As to the form of the plea it is not material. If the bail are discharged, the plea is good without being stated since the last continuance. It is said in the books that the Court will release the bail upon motion and surrender before the return of the second sci. fa.
This is stated in the books as a matter of favor, Not so here, we are entitled to it as a matter of right. 1 Hay. 364; Bac. Ab. tit. Bail D.; 1 Ld. Ray. 721; 5 Term Rep. 363.
Before the return of the ca. sa. the surrender is matter of right, and may be pleaded, 1 Ld. Ray. 156; and whilst this right continues, the bail may plead the death of the principal in discharge, but not afterwards.a1
After the return of the ca. sa., and before the return of the first sci. fa where scire feci is returned, or return of the second sci. fa. where two nihils, the Court will allow of a surrender upon motion, as a matter of grace and favor; but not ex debito justitiae.d1 Thus stands the common law. The inquiry is whether the Acts of Assembly have made an alteration. By our law, a surrender may be made to the sheriff out of court, as well as within court; and it would seem without previous notice to the plaintiff; and this right of surrendering continues until final judgment is had against the bail.
Thus it clearly appears to us that which was matter of favor in England is made matter of right by our law. When the Legislature say that bail may surrender at any time before judgment against them it is not with us to say that we will admit of the surrender as matter of grace. By law we are obliged to do it. It results, therefore, as a plain inference, that the power of surrendering with...
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