
    
      Watson, Johnston & Co. v. E. W. Bancroft et al.
    
    Where the bail surrender their principal within the term to which the scire facias on the bail bond is returnable, they are entitled to an order for the discontinuance of all further proceeding on the scire facias, on the payment of the costs which have accrued.
    
      Before Frost, J. at Charleston, October, 1849.
    Watson, Johnston & Go. had recovered judgment against Charles Hall, for whom the defendants were the bail. A ca. sa. on the judgment having been returned non est inventus to term of this Court, the plaintiffs sued out a scire facias on the bail bond, returnable to this term. When the case was called on the Enquiry Docket, Messrs. Munro, Brewster and Dunkin appeared, and, on the usual terms, claimed to have the case transferred to the Issue Docket. A few days after, the defendants having before, but during the term, actually surrendered Charles Hall to the sheriff, moved for leave to surrender their principal in discharge of their liability, as bail; and also for an order for the discontinuance of the writ of scire facias, on the payment of the costs accrued.
    Leave was granted for the surrender; but the order for discontinuance was refused ; because the merits of the plaintiff’s case should not be anticipated, and decided on a motion for the surrender of their principal by the defendants; but the plaintiffs were allowed to prosecute their suit, at the risk future costs, and with the full benefit of the defence of the surrender, actually made, for the defendants.
    The defendants appealed from the order, on the following grounds.
    Because his Honor in granting that part of defendants’s motion for leave to surrender the principal upon payment of the costs of the sci. fa. should also have granted the other part of their motion, which was that all further proceedings against them on the sci. fa. should be stayed.
    
      Munro, Brewster and Dunkin, for the motion.
    
      Campbell, contra.
   Caria, per Evans, J.

It is now fully settled that the bail may surrender their principal at any time before the end of the term to which the sci. fa. on the bail bond is returnable. Formerly the surrender was regarded ex gratia or as a favor-granted by the Court, but is now so indisputably established as to be considered a matter of right. In this case the surrender was made within the time and by the leave of the Court. The only question made is whether the Court under these circumstances ought to have ordered that all further proceedings on the sci. fa. should be stayed, on the payment of costs which had accrued. The bail stipulated for nothing else but that the principal shall be put back in the possession of the sheriff out of whose custody he has been taken. When this is done, they are discharged from any legal liability, and' why should a causeless action be continued, and the bail put to the expense of pleading to and defending themselves against an action manifestly without any thing remaining to support it ? It is the opinion of this Court that the order for staying the action should have been granted, and it is ordered accordingly.

The motion is granted.

O’Neall, Wardlaw and Frost, JJ. concurred.

Motion granted.  