
    
      CONSTITUTIONAL COURT,
    COLUMBIA,
    APRIL, 1805.
    Fleming v. Howard and Colhoun.
    On sci. fa. against the bail, they pleaded a surrender of their principal, and concluded with a verification ; plaintiff demurred, and shewed for cause, that the conclusion Was ill, and that the same should have been grout gatet per recordum; but judgment was for the defendant.
    After judgment on demurrer tcf the plea bf the defendant; leave was refused to amend the plea on payment of costs.
    Motion for new trial. Sci. fa. brought in Abbeville district; against the defendants, as special bail for J. S. Rushton. The defend dants pleaded a surrender of their principal, and concluded their plea with a verification ; whereupon, the plaintiff demurred, and shewed for causé bf demurrer, that such conclusion was ill, and that the same should have been grout gatet per recordum: Defendants joined in demurrer, and this issue was determined by Bay, J. in favoi’ of the plaintiff. The motion in this court,' was argued by Gantt, and Branding, for the defendants; and by Thompson, and Falconer, for the plaintiff. It appeared upon inspection of the proceedings, that the recognizance of special bail was conditioned “ to pay the debt, or to render the body of Rushton to the prison of' Abbeville district.”
    For the defendants, it was argued, that the surrender, according to the condition of the recognizance, was a matter in pais, and not determinable by the record; and, therefore, that the conclusion of the plea was proper. If an eononeretur had been regularly entered it would have been otherwise; But it is not always necessary to enter an exoneretur to obtain a discharge of the bail upon a surrender. I Salk. 101. 6 Mod. 238. I Bur. 409, 339. After a defendant is surrendered, notice thereof ought immediately to be given to the plaintiff’s attorney, and the necessary steps for exonerating the bail taken; but, an omission thereof will not vitiate the surrender, 0 Mod. 238. 1 Sellon, 171.
    
      E contra. It was insisted, that a surrender must be mutter of record, and tried by the record. 1 Bac. Abr. 218, 3 Vin, Abr. 444, 505. Latch, 149. Poph. 185. Hob. 210. If the bail plead a render of their principal, they must conclude their plea prout patet per recordum,, for this is not to be tried per pais, but by the record.
    Another question was also debated upon this motion which was, whether the district court ought not to have allowed the defendants to have amended their plea, after the decision on the demurrei, by altering the conclusion thereof, according to an application made for that purpose, which was.rejected.’
    For the defendants, was cited 1 Com. Dig. 680, 3. Barnes, 3,5,9.
    For the plaintiff', 6 T. R. 162. 2 Bur. 755. Bac. Abr. Pleas and Pleadings. 6 Mod. 4,102. 1 Bur. 319,321. 1 Com. Dig! 680. 3.
    Where the demurrer is first argued, before any trial of the issues, the court will give leave to amend ; but, not after a verdict. 1 Bur. 322. See 6-Mod. 102, and 1. 1 Ld. Raym. 668.
   The Court,

(Grimke, Waties, Brevard, and Wilds, Justices.)

were of opinion, in regard to the point respecting the amendment, that after judgment on demurrer, it was too late to move (o amend, ¡Sed quaere de hoc..

Upon the other point, the opinion of the court was, that judgment upon the demurrer, in the district court, ought .to have been for the defendants, because cases may happen, wherein it may be proper to conclude a plea of surrender, with a verification, as where a surren. der has been actually made, and which the bail ought to have the benefit of, but which may, nevertheless, not be entered of record, so as to be pleaded with a prout patet per recordum. Hed quaere.

The judgment given in the district court, on the demurrer, was therefore reversed, and judgment was ordered to be entered for the defendants.

Note. When the surrender has been made, the hail piece1 shall be marked and discharged, otherwise, the plaintiff'may proeeed against the bail Comb. 263. For without an exoneretur, they are liable on their recognizance. King v. Sheriff of Essex. 5 T. R 633. The bail piece is discharged, by the master’s entering an exoneretur thereon. See X Sellon's Prac, 171, If defendant surrender him* self in discharge of his bail, it ought to be entered upon record. 1 Roll. 337. Hob. 230. .'ind, therefore, if a surrender be pleaded, he ought to conclude that he is ready to ayer it by tho record. I.atsh 149 Hob. ¿10 And the entry ought to be quod reddidit se in exonerationem manucaptorum suorzim: otherwise, the bail will be charged, although the defendant be in prison. Hob. 210. See Brown v. Van Deuzer. 10 Johns. 51. Action on recognizance conditioned, that if plaintiff commenced a suit, defendant would appear and put in special bail. Plaintiff averred that he did commence, prout patet per recordum. Held that it was a question of fact, to be .tried by a'jury, and not by record, ami the averment was useless. That the record was not conclusive» See 1 ¡did. 220. The party not estopped to deny the fact.  