
    Hugh Davitt v. Hardy Counsel.
    Where a fi. fa. against the principal had been returned nulla bona, and a ca. sa. returned non est inventus, and an action commenced against the hail, on the hail bond, the hail is entitled to the whole term, after the service of the writ on him, to surrender his principal.
    This was a motion, on the part of S. E. Kenner, to be discharged from his liability, as bail for the defendant in this case. The plaintiff-had obtained judgment against the defendant, at March Terra, 1819, in an action, wherein S. E. Kenner was bail. An execution against the property of defendant was issued, and returned that nothing was to be found. A ca. sa. was subsequently issued, upon which the sheriff returned that the defendant was not to be found in his district. Whereupon the plaintiff procured the bail bond to be regularly assigned to himself, and commenced his action of debt upon it, against S. E. Kenner, the bail. During the sitting of the Court, at the first terra, the defendant, counsel, appearing, Mr. Kenner, the bail, made his motion, and the presiding Judge granted an order, that the sheriff of the district do take the defendant into custody, in discharge of the said S. E. Kenner, the bail.
    The plaintiff now moved to rescind the order, on the grounds:—
    1. Because, upon the return of the ca. sa. the defendant was not to be found, whereby the bail became fixed and liable for the judgment of the plaintiff.
    2 Because the plaintiff had proceeded to recover the judgment by an action of debt upon the bail bond, before the bail had made his motion to be discharged.
   *The opinion of the Court was delivered by [*137

Rjchaedson, J.

There is no doubt that upon the return of non est inventus, upon the ca. sa. against the defendant, the bail becomes liable. But it is the settled privilege of bail to surrender his principal on or before the return of the writ, which notifies him that he is to be holden responsible. 1 Wils. 270. Larden v. Bassage, 2 H. Black. 594. It is immaterial whether the bail be sued by sci. fa. or writ in debt. The question is, has the bail been notified? If so, he must hasten to surrender his principal, or become finally fixed' and liable upon his bail bond or recognizance of special bail, as the ease may be. But what is the last moment after suit against the bail, at which he may surrender his principal ? Strictly speaking, the bail is fixed by the return of the ca. sa., yet they have been always indulged with the right of surrendering the principal, even after such return. The English practice is to allow a few days within the first term in the Common Pleas, and in the King’s Bench the whole term. 2 Sel. 56. 8 Mod. Rep. 341. Simmonds v. Middleton, 1 Wils. 270. Bailey v. Smeathman, 4 Burr. 2134. Mannin v. Partridge, 14 East, 600. Our practice has not’ limited the surrender to a time short of the whole term ; and we deem the first term after service of the writ upon the bail, the usual, convenient, and reasonable time, within which the surrender must be made. The term affords a convenient opportunity to make the surrender. It gives the bail some time to search for his principal, and the plaintiff is put to no additional expense; for he cannot proceed upon the writ till after the first term. It is understood in this case that the ft. fa. and ca. sa. were taken out successively during the same vacation, whereby a temporary and perhaps nominal search was made, after both the goods and person of the principal. Row, though it is clear that the plaintiff may sq change his executions, yet I apprehend that the bail is entitled to have a whole vacation for the search to be made. The undertaking of the bail to the action is, that -¡qqo-, the principal will *pa,y the condemnation money, or surrender his -1 .body ; and in default of both, he will himself discharge the claim, and bail to the sheriff is now on the same footing. The failure of the principal to pay, or surrender, is vested by the executions issued. But to take them out, or either of them, for a moment only, would be a mockery. No actual search could 'be made. I apprehend, then, that the execution must have remained with the sheriff throughout the vacation, i, e., from the test to the return, before the bail becomes fixed. But this is not essential to the decision of this case.

Bauskett, for the motion. Stark, contra.

The motion is refused.

Colcock, Nora, Gantt and Johnson, JJ., concurred. 
      
       1 Rich. 421; McKenzie, Cadow & Co. v. Barnes, 11 Rich.
      Post. 569 ; 2 Rich. 554; 4 Rich. 460; 1 Rich. 421; 3 McC. 49.
     