
    
      Wm. C. Breeze, assignee of the sheriff, vs. F. H. Elmore.
    
    Bail are entitled, as a matter of right, at any time during the return term of the writ against them, to surrender their principal in discharge of their liability, on payment of the costs of the writ up to that time ; and thereupon all proceedings shall be stayed, and an cxonerehur be entered upon the bail piece, v During that term, the Court may, in its discretion, on application by the bail, grant them further time to make the surrender.
    Where the ca. sa., and the writ against the bail, were both issued and returnable in Charleston district, and before and' during the return term of the writ against the bail, the principal was m the jail bounds in Orangeburg district, under arrest by virtue of another ca. sa., and an applicant, in that district, for the benefit of the insolvent debtor’s Act, the bail, it was held, were entitled, on application made during the return term of the writ against them, to further time to surrender their principal. A debtor in the jail bounds in one district, and an applicant there for the benefit of the insolvent debtor’s Act, cannot be taken by his bail out of that district to be surrendered in another; nor will habeas corpus be granted, at the instance of the bail, for that purpose.
    
      Before Withers, J., at Charleston, May Term, 1849.
    The report of his Honor, the presiding Judge, is as follows:
    “ The motion was to grant to the defendant further time to surrender his principal, Thomas T. Stark, on the first day of the next term of this Court.
    “ The facts were these : The plaintiff had entered up judgment against Thomas T. Stark, on the 10th June, 1848, for $830 85 •, fi, fa. lodged to bind same day; ca. sa. lodged 27th September, 1848, returnable to October term of this Court, 1848. Return day of that term was 7th October, 1848. Ca. sa. returned non est inventus.
    
    “ The writ on the bail bond against the defendant, Elmore, was returnable to this (May) term, 1849, the return day of which was 11th April, 1849. Elmore was notified of this suit on 2d April, 1849 ; gave his appearance (as it is stated,) on 11th April, 1849.
    “ On the 22d February, 1849, Thos. T. Stark executed bond for the prison bounds to the sheriff of Orangeburg district, and the Clerk of the Court of that district has published notice that he, Stark, will apply for the benefit of the Act for the relief of insolvent debtors, at the October term of the Court for that district, 1849. That term will begin on the 15th October next— the Court for Charleston district will commence on the 22d of that mouth.
    “ So that the motion rests on the assumption that during the present term, the bail, Elmore, might have rendered Stark, in exoneration of his liability, (this being the term at which the writ against him is returnable) if Stark had not been in the custody of the law in Orangeburg district, and thereby taken from the custody of the defendant, his bail. It should be stated that an affidavit by Elmore was produced, that he had no indemnity from Stark.
    
      “ A much larger indulgence is extended to the bail in this State than ever was allowed in England. This results from the greater length of our vacation, and the construction which has been fixed upon what shall be considered a return of the ca. sa. against the principal, and the period at which the return of pro - cess against the bail is considered to be made. Eight days in full term after the return of the ca. sa. against principal, the bail, in England, may render, and take the benefit thereof by motion, though not by plea ; (1 Arch. Prac. 284,) and so they may, by favor, fifteen days after the test of the first sci. fa. against them, on terms. Here, though the plaintiff may be éver so diligent, the bail may have about one year after judgment entered against their principal, to search for him, and render him in their discharge.
    “ I conceive it settled by our own decisions : 1st, that at the close of the October term, 1848, the bail were fixed; that is, (in the language employed in Saunders vs. Bobo, 2 Bail. 492,) “ after (the bail) are fixed, it becomes their own proper debt, and the discharge of their principal cannot discharge them.” 2d, That by favor the bail may escape liability, notwithstanding they are fixed, by rendering their principal on or before the return of regular effective process against them, issued upon the bail-piece, (vide Ancrum vs. Sloan, 1 Rich. 421.) Then it follows, that the extent of indulgence allowed to the bail in this case, was limited to the return day, or at farthest, the return term of the writ served on Elmore, which return day was fifteen days before the sitting of the late term of the Court, when the present motion was made; and such favor rested upon the surrender of the principal, on that day or term following, or before, and upon no other condition; for the death or discharge of principal under the insolvent debtor’s law, after the return term of the ca. sa. would not avail the bail; Saunders vs. Bobo, supra ; Rawlinson et al. vs. Gunston, 6 T. R. 284; Glyn vs. Yates, 1 Stra. 511; Wolley et al. vs. Cobbe et al. 1 Burr. 244, and the cases there cited. In Glyn vs. Yates the doctrine is stated thus : “ And after argument and search of precedents, it was ruled that the bail should not be relieved, they having taken the term after suing out the capias ad. satis, at their own peril, and after that they could not discharge themselves but by an actual surrender.” Our own case of Gordon & Spring vs. Liepman, (3 McC. 49,) not only recognized the doctrine above stated, but went so far as to rule, that though the principal died during the time at which the ca. sa. was returnable, the bail could not be relieved, for the return and filing the ca. sa. fixed the bail. Perhaps since our Act of 1827, as interpreted by the case of Ancrum &• Sloan, touching the return of final process, the case from 3 McC., 49, would be so far modified as to aiford relief to bail, in case the principal died before the expiration of the return term of the ca. sa. But that view would not touch the case before me, for no motion was made for relief at such a period, and there was then no ground for one, since no obstacle whatever then existed to the render of Stark. I presume it is not doubtful that the return day of the writ against the bail, was fifteen days before the sitting of the Court in May last, vide Bank vs. Della Torre (2 Sp. 501;) and I think that day, and not the term following, was the return of the writ.
    “ Mr. Elmore, of course, designs, if the motion in his behalf be granted, to avail himself of it by plea to the action pending against him in some form ; as that the principal has been rendered, or after a motion for an exoneretur, granted on the ground of the render, to plead that as a discharge. So that if the present motion be sustained, we shall have this case. Bail, — fixed by the return of the ca. sa. against the principal, no obstacle existing at that time to the render of such principal, nor for about three months thereafter, — moves, at a term succeeding the day of the return of process against him, and after the entire lapse of the period within which favor is extended (if indeed the return day of the writ and not the term, be that period) for an enlargement of the time to surrender, to wit: at the term when issue in the action against him is regularly to be ready for trial; and this upon the ground that the principal, some three months after the bail became fixed, was arrested in another district on final process, had given bond for the prison limits, and was an applicant for the benefit of the insolvent debtors law. The argument is, that during a portion of the period when, ex gratia, the bail might have rendered his principal, the latter was seized by the law, and so taken from the custody and power of the bail.
    “ Conceding for the present that the fact be so, yet from the termination of the sitting of the Court, in November, 1848, up to the 22d of February, 1849, the law had no custody of Stark. It is, therefore, a pregnant enquiry, has the bail, seeking a degree of favor unusual, if not unexampled, manifested such diligence, such regard for the rights of the plaintiff, and the obligation due to the law which committed to the bail the custody of the principal upon condition that he be forthcoming when the law demanded his re-capture, as to lay a fitting foundation for the favor now sought ? It seems incongruous to insist that he, who has voluntarily encountered a state of things which ousts him of any plea to an action for that which, by his own default, has become his own debt, should, by motion, convert that inconvenience which he voluntarily risked into the very plea excluded by the law by reason of such risk and default. This suggestion is equally applicable, whether we regard the term for favor to the bail, in surrendering principal, to end on the return day of the capias against bail (as suggested, though not ruled, in Ancrum 
      vs. Sloan) or to expire with the return term of such process: which latter idea is favored by the language used in Davitt vs. Counsel, (2 N. & McC. 136,) though, in that case, it is obvious that the return term of the ca. sa. and the process against bail was one and the same, and the burthen of the case would seem to have been rested upon the circumstance that the bail had not been allowed the whole vacation, in which the ca. sa. should have run, to search for his principal.
    After the eight days in term, for the return of process, in King’s 'Bench, and the quarto die post in the Common Pleas, the time “ will not, in general, be enlarged, to enable the bail to surrender their principal. The only instances in which this indulgence has been granted, have been cases where, from the extraordinary nature of the facts, injustice would have ensued from the refusal of the applicationPetersdorff on bail, 403. As an illustration of such a case, Maude vs. Jowett, (3 East, 145,) is cited, where the time was enlarged ’ because the principal was subject to a commission of bankruptcy in - the country, and a surrender in London would have obliged the Commissioners to come a considerable distance to examine him in the King’s Bench Prison. But even in such case, the plaintiff will be allowed to sue out a sci. fa. against bail, upon condition that it shall not be pressed until the additional time allowed expires ; Glendenning vs. Robinson, (1 Taunt. 321.) In the latter case the bail was under order to surrender himself to the Commissioners to finish his examination, at Whitehall, 320 miles from London, and two weeks after his final examination were allowed for the render, the bail paying the cost of the motion, and to give the plaintiff notice when the last examination was finished. In neither of the cases here cited, so far as I can ascertain, did the motion for relief come at a period so late as that at which it is made in the present case, nor do I know that the bail had become fixed at all.
    “ I do not think that- the case of Mannin vs. Partridge, (14 East, 598,) was supposed to conflict with the general current of English decisions ; for Woolley vs. Cobbe (heretofore cited) was there referred to as authority. In Mannin vs. Partridge, judgment against principal was obtained in January; ca. sa. was returnable and returned on the 12th February ; that day was in vacation, for Hilary term begins on the 11th and ends on the 31st January; Easter term begins on the 15th of April. On the 3d of April the principal obtained his discharge in bankruptcy, and the first sci.fa. against bail was not handed to the sheriff until the 22d of April, returned nihil, and the second on the 13th May (after the end of Easter term) also returned nihil. In such a state of facts, the Court, per Lord Ellenborough, held the bail discharged, though the money had been collected from them. Here the principal was absolutely discharged before the first step was taken against the bail; they would, on that ground, have been entitled to an exoneretur, for if the principal had been rendered, he would instanter have been entitled to his discharge. The features of the case I am now considering, are certainly very different, though it is apparent that the case of Mannin & Partridge carried the favor to bail a great way, in extending the time when they were considered as finally fixed. To make the cate applicable to the one under consideration, as an occasion for the favor of the Court, the fact must be supposed, that Stark had obtained his discharge as an insolvent debtor during the vacation between May and October terms, 1848, that is, before the return of the ca. sa., and before any proceedings against his bail. There the bail were allowed the benefit of that which had occurred before they were sued ; here, the bail seeks to obtain, by motion, the benefit of an event similar, yet on anticipation, and expected to occur long after they have been sued. A subsequent case decided in 1817, (Stapleton vs. Machar, 7 Táünt. 589,) holds the doctrine, in conformity to the case of Walker vs. Gibbett, (2 Wm. Black. 811,) that the bail are fixed by the return of the ca. sa., so as to exclude a bankrupt certificate not allowed by the Chancellor before that period ; and this accords with our own case of Saunders & Bobo. It does indeed seem that the relief of the bail, in Mannin & Partridge, was made to have relation to process against them, instead of the return of the ca. sa. against the principal, and so far it appears to be peculiar.
    “ Now although the motion is not urged upon the ground that the principal, Stark, has been discharged, yet if it be granted, I apprehend that position is to follow, which amounts to this, that indirectly and through a motion, a result is to be aimed at and reached, which the law, upon principle, in a direct manner denies ; and thus light is thrown upon the question, whether such discretion (if this be matter of discretion] should be so exercised.
    “Notwithstanding what is said in some of the New York cases, cited in the argument, and in others that have not been so referred to, that the sickness of the bail, or of the principal, will move the Court to enlarge the time, and so forth, yet that is not the view of the English Courts, and perhaps of no Courts, where the excuse was not existent at the time the bail became fixed, even although in New York the motion may be admissable at an after period; vide Wynn vs. Petty, (4 East, 102,190; 16 ib. 389; 13 ib. 355 ; 1 Arch. Prac. 284.) Nor is the doctrine of the English Courts shaken by the case of Winstanley vs. Gaitslcell, (16 East, 389,) which decides merely that where a principal is in prison in the country, under, custody of the law, and not at the instance of his bail, the sheriff will not be compelled to bring him at the hazard of his life to London, under habeas corpus, sued out by the bail for the purpose of surrender.
    “ And in the last case, the distinction was taken between legal impossibility, which should be ground to relieve bail (by enlarging the time, or by exoneretur, &c.) and moral impossibility, which should work no favor or dispensation between the interposition of the act of God and that of the law. This motion is urged upon this distinction.
    “ What act of the law has prevented the bail from surrendering in this case 1 When fixed, there was no impediment, moral or legal; up to 22d February there was none; then, the principal sought a privilege which the law allowed to him, having, upon arrest under ca. sa., given bail for the bounds in another district. The general rule’ (says Tidd, vol. 1, p. 293, 3d American, from the 9th London edition,) ‘ by which the Courts are governed, in the exercise of an equitable interference in these cases, is said to be this, (citing 13 Price, 525, in notis;) that wherever, by the act of the law, a total impossibility, or temporary impracticability, to render a defendant, has been occasioned, the Courts will relieve the bail from the unforeseen consequences of having become bound for a party whose condition has been so changed, by operation of law, as to put it out of their power to perform the alternative of their obligation, without any default, laches, or possible collusion on their part. ” How can it be said (supposing the law has interfered in this case) that there has been no default or laches on the part of the bail ? I shall not enter into conjectures whether the indulgence sought to be enforced on this occasion might not become the parent of collusion, when it shall have become a rule of practice. Suppose the principal had been in the four walls of the jail on civil process, there must be a habeas corpus cum causa, in order that he be surrendered ; Tidd 1, 286 ; and habeas corpus ad subjiciendum, must be resorted to, if he confined for criminal cause.
    “ This process may, perhaps, be inapplicable in this instance, but I am not confident of that; if available at all, it would, I conjecture, be addressed to the bail to whom Stark has been committed in Orangeburg, as it might be to one who should have the custody of a lunatic principal, whether by process of law or not. If applicable at all, that process should have been resorted to.
    “ The enquiry here arises, is it not a mistake to say that the law had. when this motion was made, or now has, the custody of Stark % No officer of the law has any control over him. If the bail in Orangeburg have him in a string, — as has been quaintly said to be the position of such parties, — it is to be answered, he was found already in a string, held by the bail in this case, and the prior right to pull him in, was, and is, in Elmore; that if the law had committed him to bail in Orangeburg, the same law had given a prior custody to him who submits this motion, and therefore the former took him cum onere. The question has not been discussed, and I shall not adjudge it, whether the bail in Charleston, with his prior rights and obligations, shall be estopped from exercising his high power over his principal, because such principal seeks a benefit for himself by an application for relief under the insolvent debtors law, in another district; and, as incident thereto, has sought the custody of other bail; or whether this latter bail would be able to excuse himself from liability, by reason that the principal was taken from his custody by one having superior legal right; or whether such right on the part of the latter shall be made to yield to the interests of the former. These questions may deserve attention.
    
      “ I suppose it well settled that bail may take the principal on a Sunday, in order to render him; or going to a Court of Justice ; or during his examination before Commissioners of bankruptcy ; vide 1 Tidd, 285.
    
      “ I suppose the present case to steer clear of the rule which in England would relieve the bail, where the principal was transported, or on shipboard under such sentence, and so forth.
    “ It occurs to my mind, that if the principal here shall be regarded as so far in the custody of the law, that he is taken from the hands of his bail, the plaintiff may be required to await the issue of the pending application for discharge in Orangeburg, from term to term, if the cause, for any ordinary reason working the postponement of causes, should go over so long. Suppose an issue be made upon suggestion, and the cause be postponed at the next term in Orangeburg, by one party or the other, the principal would still be in the same custody of the law. Then imagine that at the next succeeding term, the Court may have no time to try the cause ; and at the third term there should be a mis-trial, would not the foundation of the present motion still exist, and a continual enlargement of time be claimed with the same reason 1 These suggestions are thrown out for consideration.
    “Upon the whole, I find no case that I consider a precedent for this motion. I consider the indulgence to bail to- have been pushed far enough in our decisions, if any definite principle is to remain for our guidance in such cases; that the better opinion is, that upon the return day of the writ against the bail in this case, ended the period of favor to him; that the case does not come within the general principle, with its conditions, cited as the result of the course of decisions, from Tidd’s Practice ; and my judgment, therefore, is that the motion be refused.”
    At October Term, 1849, the principal having in the meantime been discharged under the insolvent debtors Act, in Orangeburg district, a motion was made by the bail for leave to surrender his principal to the sheriff, and that an exoneretur be entered on the bail bond. His Honor Judge Frost, before whom the motion was made, refused it, on the ground,- that if he should grant the motion, his decision would be in conflict with the decision of the preceding term.
    The case now came before this Court on appeals from both decisions.
    Martin, for the motion.
    He had found few cases in the English books, and but few in our own, where a ruling had been made upon the precise point here at issue, to wit, how far indulgence will be granted after bail has become fixed. Still there are some cases to which he would refer, in addition to those cited in the report, where judgment has been pronounced in favor of bail, even after they had become fixed. He would first refer to a current of decisions in this country, in which a disposition to favor hail is manifested. In some of the States this sentiment is shewn as well by statutory provisions as by judicial decisions. In Georgia, under a statute of that State, it has been held, Griffin vs. Moore, (2 Kelly, 331,) that bail may render principal at any time,before final judgment against them on sci. fa. In New York, Gorham vs. Lansing, (2 Johns. Cases, 107,) the Court say: “ The cases in which the Court are particularly indulgent, are (hose where bail ask further time to surrender their principal.” In Massachusetts and'New Hampshire bail are not fixed until judgment is rendered against them on sci. fa. Champion vs. Noyes, 2 Mass. R. 485; Hamilton vs. Dunldee, 1 N. H. Rep. 172. In North Carolina, Granbury vs. Pool, (3 Dev. 155,) it was ruled that bail are not fixed until judgment is rendered against them, and they may surrender their principal even after verdict. As these cases may be founded upon statutes, they are referred to not as expositions of English practice, but as evidence of a strong disposition to favor bail in this country.
    Upon the distinction which is recognized between those cases where bail are prevented from performing their duty by act of God, and those which result from operation of law, the defendant’s case rests; and he must shew that he is entitled to the benefit it confers.
    In the report the opinion is expressed that this case steers clear of those where principal is convict, or sentenced to transportation, &c. With much deference it is submitted that the question of favor to bail is not to be judged by the extent of restraint to which the principal is subjected by law, but by the broad proposition whether he is or is not under its restraint. In England the question has been made to turn upon a rule much less rigorous than that of impossibility of surrendering. In Glendining vs. Robinson, the Court granted time upon the argument ah inr convenienti alone. In Warner vs. Hayden, (2 Wend. 251,) a principal was imprisoned for debt in another State, and time was allowed the bail until his discharge. In Duncan vs. Brown, (1 McC. 375,) Colcock, J., referring to a proceeding against principal in. civil process, says: where the “ law interferes, and in any manner takes the principal from the custody of the bail, it is considered a surrender.” But the answer is that Stark rvas not in custody of the law in Orangeburg, but of bail there, and that his bail in Charleston had him in a string, and could first pull him in. It cannot be denied that bail has his principal in his custody: but is the principal less in the custody of the law still? What gives one man power over the actions of another, but the law ? — the very language is, that the law commits him to the custody of the bail. Has the law parted with its jurisdiction when the custody is transferred to the bail? Does the law surrender the control of a prisoner when the Court commits him to the charge of the sheriff, as its ministerial officer? If not, — can more be said when a principal, by this fiction of the law, is regarded as committed to the custody of his bail ? There would seem to be no substantial difference in principle whether the law makes the bail or the sheriff the custodiary of the debtor. The power in either case is derived from and referable to the law. To say that the law parts with control, and yet to say that bail has custody, is to announce what can scarcely exist in a land of law and government. All control over the conduct and actions of others must be traced to the law: and it would therefore seem that in the committal of principal to bail, there is nothing more than a delegation of power to an agent; and that the custody of such an agent is still as much the custody of the law as the custody of a sheriff or a constable. The defendant’s position, then, is, that Stark was, from 28th December, 1S48, (not 22d February, 1849, as was supposed in the Circuit Court,) in the custody of the law in Orangeburg. Defendant, then, was Stark’s surety on the bail bond — the condition of which was not broken by Stark’s leaving Charleston and going to Orangeburg. But Stark’s engagement in Orangebnrg, and that of his sureties there, was for the prison bounds. The engagement of the sureties was totally different, and the string in which they had him in Orangeburg was very different from that of defendant. But it was said on Circuit, and will be said here, that the debt in Orangeburg was small, and could have been easily paid, &c. The amount of that debt cannot affect the question at issue. It is enough to shew that Starke was in the custody of the law in Orangeburg. That custody, which supervened after defendant’s engagements here, altered the condition qf parties, and with it the liabilities of the bail. It is analogous to the case alluded to, decided by Colcock, J., and aptly represents that condition of affairs referred to by the Court in Merrick vs. Vaucher, (6 T. R. 50,) where Lord Kenyon says: the bail engaged, under an existing state of affairs, which has been changed by causes beyond their control, they ought not to suffer. And is there not room for a still more special application, in behalf of the bail, of the .rules which prevail in England? We have no bankrupt law: the nearest approach to it is the insolvent debtor’s Act; and the Court, when administering it, may, without any great stretch of fancy, be regarded as setting pro hac vice as a bankrupt Court. It is in just such instances that many cases have been decided in England and this country, where indulgence has been extended : pending the investigation, time has been allowed, and, after a decree in bankruptcy, an exoneretur has been entered. In Maryland, upon sci. fa. against bail, they moved for an ex-oneretur, on the ground that the principal had petitioned in bankruptcy, and the motion was granted. McArthur vs. Martin, 1 Gill, 259. In New York, where a principal had been discharged under the insolvent debtor’s Act, since judgment against him, an exoneretur was entered, notwithstanding a charge of fraud. (21 Wend. 670.) The same doctrine is held in Pennsylvania, Boggs vs. Teacle, 5 Bin. 332.
    But will this indulgence be extended after bail has been fixed? In 2 Com. Dig. 48, note, it is said: “If between the return of the ca. sa. and the return of the sci. fa. principal is discharged, the bail are entitled to an exoneretur.” Here bail were fixed. In Glendinning vs. Robinson, the Court, in giving bail time to surrender, at the same time gave plaintiff leave to sue out a sci. fa. at once against bail, plaintiff undertaking not to proceed unless bail failed to surrender within the time allowed. This shews that bail were fixed. In Winstanley vs. Gaitskell, ca. sa. had issued, and yet bail were allowed time. In Toml. L. Die., Bail, it is said: bail may surrender principal before second sci. fa. Wood vs. Mitchell, 6 T. B.. 247; Boardman vs. Hunt, 1 Johns. Cases, 413.
    
      McCrady, contra,
    cited Bond vs. Isaac, 1 Bur. 339; Robertson vs. Paterson, 7 East, 405; 1 Salk. 353; 1 Wilson, 248; The case of the bail of Boise and Sellers, 1 Stra. 641.
    
      Petigru, in reply, contended that, at the term when the motion for time was made, defendant had the right to surrender his principal, if he could have produced him; that the motion for time was the only one he could make, for habeas corpus would not have been granted to take the principal out of the prison bounds of Orangeburg district; for if he had been taken out under such a writ his bond for the bounds would have been broken, and his sureties made liable; and that, as the defendant was deprived, of the custody of his principal by the act of the law, ex debito justifies, he was entitled when he made the motion to further time to surrender. He cited Gordon & Spring vs. Liepman, 3 McO. 49; Saunders vs. Bobo, 2 Bail. 492; Glove)' vs. Gomillion, 2 Rich. 554.
   Curia, per

O’Neall, J.

In this case the review of the cases presented by our brother Withers, with his usual diligence, will prevent the necessity of a recurrence to them in this opinion.— I take it that they are all stated correctly in his elaborate judgment below. Still, I have by no means arrived at his conclusion. It seems to me that in the result of his reasoning, “ that upon the return day of the writ against the bail, in this case, ended the period of favor to him,” we find the error which brought his mind to the conclusion that the defendant was not entitled to the favor asked.

It is very true, bail are fixed by the return of the ca. sa. at the term to which it is returnable, subject to one condition, however, introduced into the law originally by favor, but now by settled usage and decisions, as matter of right, to wit: that bail may, at the return term of the sci. fa. against them, and at any time before the end of it, surrender his or their principal in discharge of his or their liability, on the. payment of the costs, up to that term, of the sci. fa., and thereupon all proceedings shall be stayed, and an exoneretur be entered upon the bail piece.

The case of Watson, Johnston & Co. vs. Bancroft, (4 Strob. 218,) is full upon, and decisive of, these matters; and hence, therefore, when the motion for further time was made before brother Withers, the bail still had the right to render, as - it is technically termed, his principal, on payment of costs. Ought not the Judge in this condition of the bail, and under the facts shewn, to wit: that the principal was in the prison rules of Orangeburg District, to have granted the motion ? That it was a matter of discretion, regulated by law, cannot be denied.

It is true, too, I think, that in England, no case precisely like this can be found. Yet I do not think that ought to conclude this matter. Our practice is essentially different from that found in England. Our process is returned to terms widely apart.— Sci. fa. is served, and not completed by two nihils, as in England, except when the defendant cannot be found. Our people are scattered over a comparitively new country. Hence, although we take the doctrine of bail, as a general principle, from England; yet, like most of our legal principles, it is to be modified according to our circumstances.

That it has' been so modified, is apparent from our cases.— Much of the strictness arising out of mere technical terms, has been got rid of,,and we look now to carrying out what is the real object and'purpose of bail.

Undoubtedly bail was given so that the plaintiff might have the body of his debtor in execution. This, it was early supposed, if not complied with, at the return, in fact, of the ca. sa., made the bail liable unconditionally. It was, however, soon found that this was a mere trap for the bail, and that as time, without injury, is never any legal objection to a remedy, it was allowed to the bail to surrender, at the term to which process to charge them might be returnable, on payment of costs. — (Davitt vs. Counsel, 2 N. & McC. 136.) This overlooked the return, in fact, of the ca. sa., which could be made the day after it was lodged, and that hence both it and the sci. fa. might be returned to the same term. — (Saunders vs. Hughes, 2 Bail. 504.) It was, then, held that the ca. sa. must not be returned until, according to its terms, it was returnable, and that a sci. fa. could not be issued until after the expiration of the term at which the ca. sa. was returnable. — (Ancrum vs. Sloan, 1 Kich. 421.) The right of the bail to render their principal in discharge of themselves, at and during the term to which the sci. fa. is returnable, was, by successive decisions, made a matter of right, not depending on favor, but demandable and grantable as of common right. (Glover vs. Gomillion, 2 Rich. 556 ; Watson, Johnston & Co. vs. Bancroft, 4 Strob. 218.) This being so, we might pause here, and say that the defendant, standing on it, might' have asked to be indulged, as here claimed, if he shewed a case of necessity.

But I do not choose yet to begin the argument, which must finally be thus placed. For it is legitimate, before looking to it, to consider whether imprisonment for debt, and the implied satisfaction arising from taking the body in execution, and to secure which the bail is bound, meets with the favor or disfavor of the Legislature of South Carolina.

In 1824, the Legislature provided th^t^^s^e shall be arrested by any writ of capias ad saiiffnc^t^i^^i. (Desprang vs. Davis, 3 McC. 16; Jarves vs. Gibson, Dud. 223.) This was the beginning of reform, where it sh^ld^^^^Bwavor of the weak and powerless. In 1841, tlffij^glslamre extended the prison bounds of the jails of the resp$ctiye,ffif *tMe limits thereof. These provisions, very conckjpVély, she^áímt imprisonment for debt, which has been termed^herf^w of the law, is not in high favor with the representatives of the people, and consequently with the people themselves. This being so, we should certainly fail to carry forward the just and humane notions of the present day, by restricting instead of enlarging the privileges of bail. I return, now, to the point on which this case must be decided, — did the defendant, when he applied for further time to render his principal, shew that necessity which ought to have induced the Court to grant his request 1

It was clear that his principal was then in the bounds of the jail of Orangeburg district, under an arrest by virtue of a ca. sa. There is no doubt, as is said by Ruffin in Granbury vs. Parker & Pool, (3 Dev. 155,) he might have paid the debt, and brought his principal to town! And in the shape in which the question was there presented, it was a conclusive answer; for there, it was as a plea filed to the action on the bail bond. Here, however, the motion preceded any ultimate liability; and the question is, would the Court impose any such additional liability on the bail, unless compelled by a fixed principle of law to do so 1 No case can be found where, before the bail was precluded from a render, such a doctrine is advanced.

Here, the principal was not only in the prison rules, but he was also an applicant for a discharge under the insolvent debtors’s Act. Taking all these facts together, let us inquire, could the bail take the prisoner from the rules, by virtue of his previous custody ? This will be answered by inquiring, could he take him out of the jail'? for the prison rules are in place of the jail. The sheriff could, would, and ought to say, “ I am to hold this prisoner until discharged by law.”

No private power could interfere with this custody. Indeed, I think, the execution of a ca. sa. necessarily supercedes bail, for the time, at least. It might well be questioned, whether custody under it does not relieve the bail. But this is not necessary now. If. the bail could not take him out .of the bounds, has not there been a sufficient case of necessity shewn to relieve him % But it is said the Court will grant a writ of habeas corpus and bring up the prisoner, so as to have him rendered in Charleston. I. deny the proposition. The Court never granted a habeas corpus for an illegal purpose. Such a writ, for the purpose suggested, would create an escape — would make the sureties on the prison bounds bond liable — and would prevent the prisoner from obtaining his discharge under the insolvent debtors’s Act, when he applied for it, and where he was entitled to have it. The prisoner must,.under such a writ, be brought out of the limits of Orange-burg district — this would be an escape, and would make his sureties liable ; he would be unable, under such circumstances, to swear, as required under the insolvent debtors’s Act, to three months consecutive imprisonment, and hence his discharge would be defeated. Such consequences certainly prove that the writ of habeas corpus would not be granted, and also shew a great case of necessity, why the render should be postponed.

I think there is a conclusive reason growing out of the principal’s application for a discharge under the insolvent debtors’s Act. The whole object of imprisonment for debt is, to compel the debtor to pay the debt, or to surrender enough of his estate to pay it, or to surrender the whole in payment of it or of all his debts. The principal had announced to the world, he was ready to give up all he had, under the insolvent debtors’s Act, which would go in payment of his respective debts, according to their priorities. This was all which the plaintiff could have asked, if he had had the defendant then in execution in Charles ] ton. This application has since been carried out, arid this defendant’s principal discharged from the very debt now demanded from the bail. To make the defendant liable, under such circumstances, is such gross injustice, that unless there be some inflexible rule of law, every one would say it ought not to be.

The case of Mannin vs. Partridge, (14 East, 598,) states the very principle on which this motion should have been granted. There the certificate of bankruptcy was obtained after the return of the ca. sa. but before the time allowed, ex gratia, to the bail to render had expired ; and it was held by Lord Ellen-borough, notwithstanding there had been judgment and execution against the bail, and the money paid, yet that they were entitled to be relieved. He states the question, and answers it thus .- — “whether the principal’s certificate, at that period, after the capias ad satisfaciendum was returnable, but before the time allowed the bail by the indulgence of the Court for rendering the principal had expired, entitled the bail to be relieved? And we are of opinion it did.” Here the application for further time to render was before the time allowed the bail by the indulgence of the Court for rendering the principal had expired. If his certificate of bankruptcy then obtained would relieve the bail, ought not a pending application, ending in a similar result, to induce the Court to extend the time of render, so as to let in this complete exoneration, if it should be obtained? I think so. And certainly if the Court has the power to extend the time, there could be no fitter case. The case of Glendining vs. Robinson, (1 Taunt. 321,) is a precedent in point: for there the Court enlarged the time of render. But independent of authority, the power to suspend a liability to result from judicial proceedings, so that justice may be done, is unquestioned and unquestionable.

I think, therefore, the motion made in May Term, 1849, to enlarge the time of render to October Term, 1849, ought to have been granted, and as the principal was, at October Term, 1849, offered to be rendered, that that which ought then to have been allowed must be now allowed. But, unfortunately, since then, and pending this appeal, the distinguished gentleman, the bail in this case, has been called from his family, and his country, to his everlasting home; it is, therefore, necessary to prevent a fixed liability, that his administratrix should have the power of rendering. It is, therefore, ordered, that the motions to reverse the decisions below be granted, and that the administratrix of F. H. Elmore be allowed, on or before the second week of the next May Term, for Charleston district, to render to the sheriff of Charleston district, the body of Thomas T. Stark, in discharge of the bail, her intestate, F. H. Elmore, and on presenting the certificate of the said sheriff, that such render has been made, and paying the costs of the sci. fa. to and including October Term, 1849, that an exoneretur be entered on the bail piece and all proceedings be stayed.

Evans, Frost and Whitner, JJ. concurred.

Withers, J.

dissenting. The determination, just announced by the majority of the Court, conforms to the expectation I entertained. when I ruled this case on circuit. That expectation arose from evidence (which is to be found in the current of our decisions for a long time past) of a continual tendency towards the object of giving ease to the bail. I am aware that, cautiously and by slow degrees, some relaxation of the stringency of the earliest rules has been admitted in England. But that we have travelled faster and farther in that direction, than have the Courts at Westminster, whence we have been bound to draw our rules and examples on this subject, nobody will doubt, who will take the trouble to gain the information that is to open to him in many books. Petersdorf’s Abrid, vol. 3, Article, “Bail,” will present a very extensive extract of the English law. In some of the States of the Union, the Courts, some with and some without the aid of the Legislature, have cut loose from first principles, and appear to me to be at sea. Occasionally, an obstacle has been interposed with us, but it has always been speedily ovewhelmed; the period when bail shall be deemed fixed, has, from time to time, been set forward, and the means and modes of unfixing them have been multiplied. Believing this temper of our Courts had, by steady steps, already led us to transcend the safe limits of sound judicial guides, I declined to take, on the circuit, what I considered another step in advance (and, according to my judgment, in a wrong direction,) and determined to leave that measure to the wisdom and resolution of a higher tribunal. Such resolution is here taken. I have, however, heard nothing to convince me that I ought to have advised it; and what I fear most is, that it will become only the precursor of another stride. Let us jealously guard against the danger of being seduced, by a mere closet philosophy, warmed up by sentiment, heedless, though it may be amiable, to a warfare upon the remedies of creditors as the persecutors of misfortune. My experience in the real affairs of life has not revealed those scenes of sacrifice with which imagination has often fed a tender sympathy. According to the light that I have on the subject, it is not extravagant to say, that fifty debtors have cunningly eluded justice, by the help of juries and other means, where a single honest insolvent has suffered any degree of oppression from his creditor. I am not, therefore, well inclined to that course of decision which may nibble at the legal means afforded to the creditor for the enforcement of rights, judicially ascertained, until his last resource, after a long chase for his honest dues, shall become completely enervated.

The theory of the law applicable to this question is perfectly clear. The bail engage to render the body of the principal to answer the plaintiff’s judgment, or, in default, to pay the condemnation money. That obligation is exacted when the plaintiff, having signified thus his rightful demand arising from the bail piece, has issued his ca. sa. and the same is returned to the Court at its succeeding term, with the sworn indorsement of the sheriff, that the party, debtor, is not found. Thereupon, the bail bond (as we call it) is ipso facto broken; the bail are fixed; the debt becomes their own. The principal could not, according to the original rules of the English Courts, be afterwards surrendered: a render could not be received in discharge of the absolute obligation that had fallen on the bail. -In process of time that stern rule was found to work harshly. The plaintiff might take out a capias returnable the next day; so that bail had no time to bring in the body. In this particular, we have quite outstripped the English practice in behalf of the bail. Notwithstanding a struggle to the contrary, the bail cannot now be fixed till the end of the return term of ca. sa. against principal, Then came the idea of further indulgence, by order and upon motion, to discharge bail on rendering the body during the return term of process against bail. But it has always been .put on the express ground that render and nothing else must be made then, at the last moment of indulgence, unless at a previous time, to wit, when bail were about to be fixed, or before and in anticipation of it, an order was obtained still further postponing that last moment of indulgence; and for that extraordinary indulgence a cause must be shewn, not only excluding all suspicion of collusion between principal and bail, but testifying that some uncontrollable necessity does prohibit or will prohibit the bail from keeping his bond by a render at the period that fixes him.

On this occasion, for the first time, have I heard the idea advanced, that process against bail is the step which is to quicken their energies; to notify them that their engagement in the bail piece is to be exacted. I had always understood that the ca. sa. performed that office, and that, when issued and lodged with the sheriff, it performed it fully. The language familiar to me, on this point, is the following, (in Clonmondeley vs. Bealing, K. B. 2 Ld. Raym. 1096) to wit; “bail are not bound to render the principal until they know what execution the plaintiff will choose to adopt; whether he will choose to have his body, which he makes appear by suing out his capias, for he might have sued out an elegit or a fi. fa.”

The majority of my brethren hold, in the present case, that a motion for indulgence to the bail should be entertained at the return term of process against them; that notwithstanding there was not the slightest obstacle to the render of the principal at, and for some time after, the term at which the bail became fixed, the indulgence craved should have been granted, because, between the two Courts, when the bail became fixed, and when process against them was returnable and returned, the principal was arrested in another district on a ca. sa. gave bond for keeping the bounds, and took measures to obtain the benefit of the insolvent debtors’s Act; and that such ivas his condition when the motion was made. It is in vain that, against this motion, the plaintiff invokes the accumulated weight of all the authority of the King’s Bench and Common Pleas of England; it is in vain that he points out the default which occurred during the pendency and at the return of the ca. sa.; that he urges the right of the bail to take their principal in Orangeburg district and present his body, instead of their tardy motion, to the plaintiff ; — that he denies that he is in confinement at all since he is at large in that district; that if he must be so considered, still that habeas corpus is at the service of bail, and that there is abundant authority to warrant that writ; that he denies that the principal is in the custody of bail there, because the surety on a prison bounds bond is not bail, and has none of the rights or attributes of bail; that he denies that an escape could be imputed to the sheriff in Orangeburg, any forfeiture incurred by the principal, or liability fixed on the surety there, if the bail here, by habeas corpus, or by the exercise of his rights as bail, were to capture the principal there and render him here, since there would be no voluntary violation of the engagement in Orangeburg; that he argues, and quotes authority to shew, that when the bail became fixed, he took all the risks of failing to render within the period of indulgence; that the bail cannot be helped if his principal dies in the mean time, or is discharged as insolvent; that, nevertheless, the granting of this motion will eifectually protect the bail and place him in the same advantageous position (and the principal in a far better one) as if a render had been made, as it might have béen, at the return of the ca. sa. or after: — all this authority and these considerations are overwhelmed by something supposed to be discovered in the lenity of some American adjudication, although in utter repugnance to the doctrines of those tribunals to whose practice this Court is enjoined, by the authority of positive law, to look for instruction.

I am not prepared for this innovation, and entertain the opinion that if we are to turn from Westminster and look to New York for our lights, in this particular path of duty, we are but in the infancy of progress in this department of law reform. I am more satisfactorily instructed by the sentiments of Judge Ruffin, expressed at page 157, (3 Dev.) as follows: — “I see no reason why such imprisonment (that is for debt) should induce the Court to enter an exoneretur or stop proceedings. For the bail must be taken to have undertaken to produce the principal, unless it was unlawful or impossible. .This is the case with an alien enemy, one transported for a crime, or imprisoned abroad for like matter. But he may always arrest his principal who is imprisoned for debt only by paying that debt. He has engaged to surrender him without any such exception. The plaintiff must lose the benefit of his recovery unless the bail be bound to release the debtor from his confinement abroad; (the party here was imprisoned in Kentucky for debt by the United States) for if the plaintiff were to do so, he could arrest him and bring him within the jurisdiction. The bail alone has that power. But the clear reason is, that the bail contracts to have the debtor forthcoming, and it is no answer to that for him to say, my principal owes another man as well as you. He ought to have seen that beforehand.”

Í apprehend we are greatly diverging from such wholesome views, which favor the notion of still leaving some vitality in a solemn contract; that we are drifting to, if we have not quite reached, the following position: that extraordinary additional favor to principal and slothful hail shall be the polar star; that a sinking debtor shall have enlarged opportunity to waste the remnants, which, if the vigilant creditor (in whom the law rejoices) were let to his full remedies, might be saved, to be devoted to that demand the justice whereof the law has solemnly attested; that hereafter, if a principal, perfectly in the power of bail at the return term of the ca. sa. and during the whole vacation following, should, on some day of the return term of process against bail, get into jail, in Georgia or California, the bail must be forthwith relieved; for this case will be quoted to shew, that the law had superseded the custody of bail, though not before the last moment of what till lately was called the extreme limit of indulgence for the render (now claimed and conceded as a well settled legal right); and however the bail may have speculated, as insurer, upon the ordinations of Providence, and though he shall be allowed no dispensation therefor, yet if the principal shall casually or wilfully, actually or constructively, fall into some other mesh of the law, the bail shall be relieved from the unhappiness of a miscalculation, even from the trouble of an habeas corpus to bring in the body; and by extension of time for that purpose, under order, according to the discretion of an appeal tribunal, a door, closed by the regular operation of law, shall be suddenly opened, and he be relieved from the toils into which he had most voluntarily entered.

A revieAv of the vast multitude of cases, that would give us light in this discussion, I have now no time to make. Something of that kind may be seen in the brief. The inquisitive may consult a great deal of matter germain to our subject in Peterdorf’s Abridgm. and Bacon’s Abridgm. title Bail in civil cases.” I am happy to know that, if I have fallen into error, it is now corrected in the particular case; and if the definite and intelligible rule of future practice (so loudly demanded at the bar and supposed to have been so rudely attacked in the circuit decision) has been now afforded and fortified by the Court, I shall have my full share of the benefit thereof as an official guide in future.

Wardlaw, J. concurred.

Motions granted.  