Boyer v. Herty

U.S. District Court

Decided July 15, 1805

U.S. District Court · decided 1805-07-15

Motion to stay proceedings against bail, or to enter an exoneretur. The ca. sa. against [Owen]' Roberts was returned “non est,” to December term, 1803. On the 7th of Jan-nary, 1804, the law of Maryland was passed to discharge Roberts as an insolvent debtor. On the 27th January, 1804, the scire facias issued against the bail, returnable to July term, 1804, and was returned scire feci. In May, 1804, Roberts was discharged by the chancellor of Maryland.

Decided 1805-07-15

THE COURT

¶1stopped

Mr. Key, contra,

¶2and said that although the practice has made it law, yet it is still 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 tlie scire facias.

¶3The motion was overruled.