
    Gordon & Spring Assignees vs. Adm’r. of Liepman.
    The death of the principal, after the return and filing of the non inventus on the co. sa, is no discharge of the surities to a bail bond.
    The time allowed the bail, after the return of non inventus, to surrender his • principal, is ex gratia, to avoid his liability, which is fixed from the return.
    ' Tried at Charleston, before Mr. Justice Waties, who made-the following report:
    “ This was an action on a bail bond. The principal died after the return of non est inventus on . a ca. sa. but before the expiration of the term. The plea was, that the bail had' a right to the whole term, for making a surrender; and that the death of the principal, within that, time, was a good discharge. I w^s of opinion that the settled practice was otherwise. The case of Davitt. vs. Counsel. (2 Nott and Jll: Cord, 136) was relied on in support of the plea, but it appeared to me that the decision iñ that case, was not intended to alter the English rule on the point,. It refers to the English cases as authorities; and all of these agree that the bail is fixed, de jure’, by the return and filing of the ca. sa. And, although, after this, a further time is allowed the bail to bring in the principal; yec this is only ex gratia,, and they take the risk of the death of the principal. f 12 Mod. 601. 1 Sir 511. 2d Lord Raymond 1452. 2 Wils. 67. 6 T. R.‘ 284.) In Okott vs. Lilly, (4 Johnson's R. 408,) C. J, Kent, in delivering the opinion of the court, says: “ There is no case in which the death of the principal after the return and filing of the ca. sa. has been allowed as a ground of relief. "1 he time which is allowed the bail is ex gratia, arid at their peril. I, therefore, overruled the plea, and th$¡ plaintiffs took a verdict.”
    An appeal was now made from the foregoing decision and verdict upon the grounds.
    That his honor erred in deciding, that the term, to which the ca. sa. against the principal was made returnable, was allowed to the bail ex grapa and not de jure, and that the bail •therefore was not entitled, in this case, to his discharge.
    
      Argued, 21st March, 1825.
    
      Moise, for the motion,
    Cited Davitt vs. Counsel, (% Mtt fy MlCard 136,) to shew that bail is entitled, to the,, whole term, after the return of the writ, to surrender his principal. The universality of the rule, that bail may have eight days, after the return of the writ, to surrender up the principal, has made it a matter of right. (2 Johns. Rep. 1,0.1-.) Bail is not fixed until eight days after the return of the process against them. (2 Johns. Cases, 403.) Bail have, eight days, after the return of process, in a new action brought by executors of plaintiff. (8 Tem. Rep. 422.) The eight days grace, was originally ex gratia, but is now a matter of right. In England the ca. sa. must be, filed as well as re~ lurned; here it is not necessary to file the ca. sa. and bail has» the whole ternni, (1 Bos. and Pul, 61.1 John. R. 515.) Death of the principal, after return of the ca. sa. and before set. fa. against the bail, discharges the bail. (Highmore, on. Rail-68.)
    
    
      ; Holmes, contra,-?
    The extension of the timéis ex gratia, and tiot ex debito justicia;; and the death of the principal, Wing an'injury to the plaintiff, proceeding from the laches' of the bail, should hot discharge the bail. Mo cáse of the , death of the principal, after the return of the ca. sa. operating the discharge of the bail, (4 Johns. Rep,AOS.
    
    
      Grimlte, in reply.
    Where the principal is taken out of the hand of the bail by operation of law, the bail is dis* charged. By analogy, where he is taken out by act of God, he should be discharged. By surrender in the period, ex gratia, the bail incur no forfeiture but costs. Cases of liberality to bail, (1 John. Rep. 413. 1 Johns. Cases 28. 4 East 189. 18 John. 335.' A case where the principal was discharged under the insolvent debtors act, áfté¡: the return of 6a. sa. is in 5 Binney 332.
   Nott, J.

The motion.is refused. This court concur In opinion with the judge .below.

Grimlte, Moise and Shand, for appellants.

Holmes and Waring, contra.  