
    *Kane and Kane against Ingraham.
    Where the principal in a cause bad obtained his certificate of discharge under the bankrupt law of the United States before the bail had become fixed, the court ordered an exonereiur to be entered on the bail-piece.
    And bail are not considered as fixed, until after eight days in full term after the return of process against them, or within the time allowed for the surrender of the principal.
    Boyd, in behalf of Phoenix, bail for the defendant, moved that an exoneretur he entered on the bail-piece in this cause, the defendant having obtained his certificate of discharge under the bankrupt law of the United States, of the 5th April, 1800.
    The suit was commenced the 7th November, 1800; judgment was obtained, and a ca. sa. was issued, which was returned non est inventus the 21st July last. Pending this suit, the defendant committed an act of bankruptcy, and a commission having been issued against him, he obtained his certificate of discharge on the 21st August last. After his discharge, a suit was commenced against the bail, and the capias was returnable on the first day of this term.
    
      Boyd
    
    cited 1 Burr. 244. Cowp. 823, 824. 1 Term Rep. 624. Col. Cas. 51, 60. 1 Bos. & Pul. 61.
    Hopkins, contra,
    cited 2 Bl. Rep. 811, 812.
   Per Curiam.

By the act of congress of the 5th April, 1800, the bankrupt, on obtaining his certificate, is to be discharged from all debts owing by him when he became a bankrupt, and which might be proved under the commission. This debt is, no doubt, one of that description. The certificate of his discharge cannot be obtained, unless the commissioners certify that he has made a full discovery of his estate and effects, and in all things conformed to the act, or the judge of the district shall be of opinion that the certificate is unreasonably denied by the commissioners; and unless two-thirds of the creditors in value, coming in under *the commission, shall consent to the allowance of the certificate, and such consent proved by the oath of the bankrupt to have been *fairly obtained ; and any of the creditors are entitled to be heard against the allowance of the certificate. Public notice of the bankruptcy is required to be given, and the creditors are fully apprised of the proceedings against him.

The act also provides, that if the bankrupt be arrested or prosecuted for any debt due before he became a bankrupt, he shall appear without bail, and may plead the general issue, and give the special matter in evidence ; and it is declared that his certificate shall be prima facie evidence of his having conformed to the act, and the burthen of proving fraud or nonconformity shall lie on the plaintiff; and if the bankrupt be taken in execution or imprisoned on account of any such debt, he shall be discharged by habeas corpus.

In the present case no fraud appears to invalidate the discharge. It is not to be supposed that any existed, for the plaintiff has had an ample opportunity to show it against the allowance of the certificate; and the act expressly directs that the onus probandi shall afterwards be on him. A bare suggestion cannot be received as evidence of fraud. We are, therefore, to consider the certificate as fairly obtained ; and if the defendant were in prison, he would be entitled to his discharge, on a habeas corpus. It is unnecessary to say what this court would collaterally do on the present motion, if fraud had been made to appear.

The only question is whether the bail is now in time to surrender. If he may surrender to prevent circuity, the modern practice is, (Cowp. 823, 824 ; 1 Term Rep. 624,) to order an exoneretur at once to be entered. By the English law, the rule is that the bail cannot surrender their principal, being a certificated bankrupt, after they are fixed. Woolley v. Cobb and Cockerill v. Owston, (1 Burr. 244, 436, and 1 Term Rep. 624,) are decidedly to this effect. The bail, in the sense of the authorities, are deemed to he fixed, when *the ca. sa. against the principal is returned non est. If we apply this rule, the bail would here be fixed, and cannot surrender. But our courts in general have been liberal towards bail, and have considered the privilege within the period of grace as ripened into a matter of right. Thus they are held liable to interest, on the judgment against the principal, only from the expiration of the days of grace. That is a case quite as strong as the present, because there they are not only fixed in law, but have voluntarily waived the privilege of a subsequent surrender. And if no analogous case existed, we are inclined, in favor of bail, to adopt the rule that they are in no case definitively liable till the expiration of the eight days in full term after the return of process against them.

The bail in this case, would, therefore, be allowed to surrender ; but as the principal would be immediately entitled to his discharge, the surrender would be an idle ceremony, entirely useless to the plaintiff, and attended with expense and inconvenience to both the defendant and his hail, we think the practice of entering an exoneretur ought to be pursued.

The motion must be granted.

Motion granted.()() 
      
      
        (a) [Old note.J See Seaman v. Drake, 1 Caines’ Rep. 9. Jones v. Emerson, 1 Caines’ Rep. 487. 2 Johns. Rep. 101. 4 Johns. Rep. 407.
     
      
      
        (b) See supra, p. 284, n. (b,) to Milner v. Green, and references; supra, vol. 1, p. 329, n. (a) to Strang v. Barber and Griffin ; Ellis v. Hay, 1 id. 333. Brown v. Smith, 9 Johns. Rep. 84. Brownlow v. Forbes, 2 id. 101. See also Saunders v. Bobo, 2 Bailey, 492. Bailey v. Seals’ Bail, 1 Harrington, 369. M’Glensey v. M’Lear, 466. M’Cannland v. Waller, 1 Harris & Johnson, 156. M’King v. Marshall, id. 101. Champion v. Noyes, 2 Massachusetts, 481. Payson v. Payson, 1 id. 292.
     