
    CONSTITUTIONAL COURT,
    COLUMBIA,
    NOV. 1803.
    Thomson v. Spradley.
    Motion to transfer an entry, of a surrender by bail, from the minutes og the sessions to those of the common pleas, refused; the judge, who presided when the entry was made, having stated, that he would have refused permission to make the surrender, if it had been offered on the civil side of the court.
    On a rule to shew cause, why an entry made in the minutes of the court of sessions, in Kershaw district, in these .words, viz; “ The State v, Brian Spradley. Patrick M’Cain, the security for the appearance of the defendant, delivered him to the court; Ordered, that the sheriff do take him into custody.” Should not be transferred to the minutes of the court of common picas, and inserted as made in this cause ; upon affidavits, which stated, that M’Cuiri, being bail for the defendant to the sheriff, in the civil action, and not bound as surety for his appearance in the court of sessions, in any criminal ease, intended to surrender him to the sheriff, or the court, in open court, at the appearance term, in discharge of his bail; and that the entry of such surrender was made, as aforesaid, by mistake. Cause was shewn, in Kershaw district court, before Brevard, J., and it was insisted, that bail to the sheriff, cannot surrender his principal; and, that by the act of 1785s 
      f. L. 369, the common bail, must enter himself special bail, before he is entitled to surrender his principal: and, therefore, as the surrender was unauthorized by law, and insufficient, it would be idle and vain to make the proposed transfer. Also, that it was the business of the bail to see that the entry was propel ly made to exonerate himself. The following authorities were quoted: 1 Bl. Com. 290, I Cromp. 59.
    - On the other side, it was argued, that bail to the sheriff are .entitled to surrender; and shat to charge the. common bail, and subject them to judgment upon a set. fa., according to the act of 1785, the plaintiff, in the original action, must take care to have an order of court, "at the return of the writ, importing that he. has shewn sufficient cause of action, and requiring the defendant to give special bail. .Cited lpromp. 56, Barnes, 111, 117, 105,103, 90. 1 Bos. & Pul. 325.
    The district court directed the transfer to be made, upon the single ground, that, as it appeared that the intention .of the party, in whose favor the entry was made, was to surrender iu-the court of common pleas ; and, as the entry, if it was authorized to be made, at all, must have been intended to be made in the court of common pleas ; and, as all mistakes of this sort, and mis-entries, ought to be rectified, if applied for to be rectified within a reasonable time: .therefore, it was proper to have the entry inserted in the place, where it was intended originally to be inserted, whether it should have been made, or could have been properly made or not; and, whether it can he of any avail, if so inserted, or not; as it could .not he certainly known, how far it might have been right to have made the entry, and how far it may serve the interest of the bail, to have it made among the minutes oí the common pleas.
   The court, after hearing argument by Rlanding, in support of a motion to reverse the decision oí the district court, and Falconer, against it, determined that the same should be reversed; principally, on the ground, that Johnson. J., who presided in the district court when the original entry was made, declared, that if he had understood such entry was intended to lie made in the court of common pleas, he would not have suffered it to he made there. The court intimated no opinion upon any of the points discussed in argument, as to the right of the common bail .surrender, or relative to the mode of entering special bail, and surrendering, pursuant to Act of Assembly ; but said; that all questions of this kind, would be open for investigation, upon the trial of the sci. jet.

Present, Gr.mke, Watiiss, Johnson, Trezevant, vard, Justices ; Bay, J., absent. and Bri?.

Decision of the district court reversed.  