
    
      A. C. Bomar vs. R. C. Poole.
    
    1. In an action against the defendant on a bail bond, the proof was, that he, and another, were securities for the same principal for the prison bounds. That they wished to surrender him in this case, and that when they went to the sheriff for the purpose of making the surrender in the bounds case, defendant said to the sheriff, that he wished to be free from all responsibility — to which the sheriff replied, by saying, that his principal was in gaol.
    2. This was held an insufficient surrender of the principal, as it did not appear certainly, in what cases, or for what purpose, it was made.
    3. The surrender of a principal by bail, must be by some distinct, unequivocal act, accompanied by such declarations or acknowledgments as shew its purpose, and the case or cases to which it applies, and guarded by the means of clear proof, so that the sheriff may be surely liable if he should permit an escape, and may be protected in detaining the principal rendered, until a lawful discharge be had.
    
      Before O’Neall, J. at Spartanburg, Extra Term, July, 1843.
    This was an action on a bail bond, executed by F. Bomar, and the defendant, in the case of Chambers & Co. vs. J. V. Bomar. The only question in this case was, whether the defendant had surrendered his principal. The proof was, that William Walker and Poole were securities for Bomar, for the bounds, in the case of Mitchell against him; they wished to surrender him in that case; the defendant said to Walker, that he was security for Bomar in other cases; and the defendant said, when they said to the sheriff, that they came to surrender him in the prison bounds case, that he wished to be free from all responsibility, the sheriff, Bomar, replied that F. Bomar was in gaol. The witness, Walker, said he did not know that any thing was said about the Chambers case. Tollison proved that Bomar was only confined in the bounds case.
    For the plaintiff, J. P. Martin, proved that he was bail, in a similar case, in which he had neglected to surrender his principal. He consulted Poole about his liability, he advised him he would have the money to pay; and said to him, that he had forgotten his being bail for Bomar in this case, or he would have surrendered him.
    The question of surrender was submitted to the jury, as one of fact They found for the defendant.
    
      The plaintiff appealed, and moved for a new trial on the following grounds.
    1. Because the surrender of F. Bomar, in the case of Mitchell, was no surrender in any other case, nor did the general declaration, that he wanted to be discharged from all responsibility, vary the character of the surrender.
    2. Because the surrender, to be effectual, must be specific, which was not done in this case.
    3. Because the verdict in this case was without evidence.
    4. Because the verdict was against law and evidence.
    
      Henry & Bobo, for the motion.
    
      II. H. Thompson, contra.
   Curia, per

Wardlaw, J.

The practice of the English courts prescribes certain formalities, as essential to perfect the render by bail, which, in the Common Pleas, are more simple than in the King’s Bench. See Sellon’s Practice, 165. Of these formalities, the comitlitur of a judge is expressly dispensed with by our Act of 1809; and the circumstance that, with us, the bail bond is by statute, converted, in effect, into a bail piece; and is kept by the sheriff, whose duty it is to receive the body, makes, by implication, other changes in the prescribed formalities.

It is not now intended to lay down a rule which shall hereafter be conformed to, nor to decide whether notice to the plaintiff’s attorney is, as in England, necessary to perfect the render,; nor whether, as there, the bail remains bound until an exoneretur be entered. Sufficient here it is to say, that the render must be by some distinct, unequivocal act, accompanied by such declarations or acknowledgments as shew its purpose, and the case or cases to which it applies, and guarded by the means of clear proof, so that the sheriff may be surely liable if he should permit an escape, and may be protected in detaining the principal rendered, until a lawful discharge be had. If a principal rendered should, under our Act of 1839, give new bail in the case distinctly mentioned to the sheriff, it would be dangerous and unjust to compel the sheriff, at his hazard, to decide whether or no, such principal should yet be detained on account of some other process vaguely hinted at by the bail, but not specified in such way as to exclude the chance of the bail himself afterwards, as a witness in an action by the principal against the sheriff for false imprisonment, explaining that his words were not meant to embrace such other process.

If, here, the requirements of the law to constitute a render in the case alleged, had been explained to the jury, their finding might be held to ascertain that all was done that was necessary, but as the case was submitted, the finding seems only to shew that the body was in the custody of the sheriff. In what cases, and for what purpose, are left uncertain.

The motion for a new trial is granted.

Richardson, O’Neall, Evans, and Butler JJ. concurred.  