
    WHITE’S EXECUTORS vs. CUMMINS.
    Death of the principal after the return of a ca. sa. discharges the bail. Quere.
    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 the defendant, and appeal to this court.
    Dickinson and White, in support of the demurrer,
    argued, 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.
    
    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 & surrender before, the return of the second sci. fa.
    
    This is stated in the books as a matter of favour. 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 T. Rep. 363.
    
      
      Cro. J. 97 165. 1 Str. 511. 6 T. R. 284. Acts 1794, c. 1. s. 13 14 15 16 4 Bac. Ab. tit. Statute 647 letter I. Barns 106. 2 Wils. 67.
    
   Per Curiam.

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.

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 favour ; but not ex debito jasticiae. Thus stands the common law. The enquiry is whether the acts of assembly have made any 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, that which was matter of favour 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 us is on the same footing before, and after, the return of the ca. sa. In England whilst it continued matter of right to surrender, the death of the principal might be pleaded; so we think here; and as the bail have a right to surrender at any time before final judgment against them, they have a right to plead the death of the principal before that time. It would be absurd to say that the means of redress by pleading should not be co-extensive with the right of being discharged. Defect of remedy, and want of right are the same thing.

Judgment of the county court affirmed. 
      
      Cro. J. 97. 2 Wils. 67. 5. T. R. 368
     
      
       2 Ld. Ray. 721.
     