¶1will only exonerate where the bail have a right to discharge themselves by surrender. Southcote v. Braithwaite, 1 T. R. 624. But here the principal was discharged and the bail had a right to surrender him at the return of the scire facias.
¶2The Court stopped Mr. Key, contra, and said that although the practice has made it law, yet it is stilí ex gratia, for the rule is well established that if the principal die after ca. sa. returned non est and before scire facias against the bail, yet the bail is fixed. Here the bail was fixed, and. although he might surrender the principal at the first term upon the return of the scire facias, (and perhaps at that term the Court might have entered an exoneretur while it was in the power of the bail to surrender,) yet the bail having neither surrendered the principal nor produced his certificate of discharge at that term, the application is now too late, this being the third term after the return of the scire facias.
¶3The motion was overruled.