
    Brownelow against Forbes, bail of Fitzgerald. Same against Fitzgerald and Piper.
    Though bail be indemnified by their principal, yet the court will order an exoneretur tobe entered on the bail piece, if the surrender has been ipade within eight days after return of process against bail.
    
      Woodworth, attorney-general, in behalf of the defendants, moved that the default and judgment entered against the bail in this cause, should be set aside for irregularity, and that an exoneretur. be entered on the bail-piece. The same motion was made at the last term, when the court directed the proceedings to stay, and the application to be renewed at this term.
    The capias ad respondendum, issued against the bail, was returnable on the 17th May, the last day of that term ; and on the first day of August, and previous to the commencement of the last term, the principal was duly surrendered by his bail, into the custody of the sheriff of the city and county of New- York ; and the rule to show cause why an exoneretur should not be entered on the bail-piece, before the Recorder, on the 6th day of August, was duly served on the plaintiff’s attorney; but the defendant’s attorney not attending at the day, the rule was not granted.
    
      Woodworth contended,
    that it was now the settled practice, that the bail had eight days, in full term, after the return of the capias against them, to surrender their principal ; that the surrender in this case, having been made before the expiration of the eight days, the bail were entitléd to be exonerated.
    
      Harison and D. B. Ogden, contra,
    read affidavits, by which it appeared that Fitzgerald, having been arrested in several suits, put in bail, which was excepted to by the plaintiffs as insufficient; that Fitzgerald then agreed to deposit $10,000 with Forbes, who consented to become additional bail. An agreement was then entered into between Forbes and the attorney of the plaintiff, by which it was stipulated that Forbes was in no event to be liable for any damages or costs beyond the amount of $10,000 to be applied by the attorney of the plaintiff rateably towards the payment of the judgments to be recovered in the several suits. It appeared also, that Forbes still retained the sum of $10,000 in his hands, and that Fitzgerald had voluntarily surrendered himself in discharge of his bail. It was contended, that the rule of practice, allowing a surrender after the return of the ca. sa. was a privilege of the bail, not of the principal. Here the bail did not surrender the principal, but the latter voluntarily surrendered himself. On the return of the ca. sa. against the principal, the bail are legally fixed. Allowing the bail to surrender, afterwards, is matter of indulgence and favour, and in the sound discretion of the court. It is intended for the relief of bail, and the court, will look into the circumstances of the case to discover whether the bail will suffer. If bail be indemnified by their principal, there is no reason for the court to interfere; for they can suffer no injury. Here the money was deposited with the bail, for the express purpose of indemnifying them in this suit.
    
      T. A. Emmett, in reply.
    In an application of this nature, the merits of the original suit are not to be taken into consideration. The rule of practice in regard to hail is, that where the plaintiff proceeds by an action of debt on the recognizance, the bail have eight entire days in full term, next after the return of the process against them, in which-to make a surrender. The object of bail is not to indemnify the plaintiff, but merely for the forthcoming of the body of the defendant. The condition of the recognizance is, that the defendant shall pay the condemnation money, or surrender himself into the custody of the sheriff. If the condition be fulfilled by a surrender, there is no ground for an action on the recognizance, and the court must relieve. The practice of relieving, within the eight days next after the return of the process against bail, has been so long established that it has now grown into a matter of right; though strictly speaking, it is sai¿ to be matter of fanout. A favour which the court cannot, consistently or justly refuse, is tantamount to aright. In the eases cited on the other side, the bail were, from peculiar circumstances, unable to surrender the principal; their application was, therefore, addressed to the indulgence and favour of the court. Not a case can be found, where bail have been denied relief, when the body of the defendant had been surrendered within the time allowed by the rules of the court.
    Where the body of the principal is surrendered in due time, the court caunot go aside to inquire as to any indemnity. The only question is, has the condition of the recognizance been fulfilled, .according to the established practice of the court ?
    The notion ,to set aside the default and subsequent judgment, is substantially an application for the relief of the bail : and if the court order an exoneretur, the other will follow of course.
    
      
       1 Bos', and Puller, JVevj Rep. 67, 68. Copous v. Blyton.
      
    
    
      
       6 Term, 56. Merrick v. Voucher.
      
    
    
      
      
        Tid<PsPractice, If. B. 147. Coleman's Cases, 108, 169.
    
    
      
      
        1 Caines, 9. Seaman v. Drake.
      
    
   Per Curiam.

There is no case in which the court have refused to order an exoneretur, where the surrender has been made within the eight days. Such a surrender is a compliance with the condition of the recognizance. By the universality and uniform application of this rule, it has now grown into a matter of right. Technically speaking, it cannot be pleaded, and so it is not de jure. The relief is. on motion, and not by plea, and the court always require the costs in the suit on the recognizance tobe paid, and so far, and no farther, it is ex gratia. We are not to look into the merits of the original suit, nor are we to inquire whether the bail be indemnified or not. It is enough that the surrender has been made within the time required by the rules of the court. We have before decided, that we would relieve on motioii, after a default, if the principal had been discharged by the insolvent act.

«ule granted.  