1 Ohio 36 | Ohio | 1822
Our statute declares that the bail shall be discharged by surrendering the principal upon the return of the first scire facias “ executed,” or the second “nihil.” This is the rule of the English courts. It is, however, one principle of this rule, as established in-. England, that if the principal die after the return of the ca. sa. non-est, the bail is charged. It is maintained for the plaintiffs, that as the legislature has adopted, in substance, the English rule as to-the period at which a surrender shall discharge the bail, they have adopted that rule in all its parts — so that if' the principal die after the return of the ca. sa. non est, the bail can not be exonerated. The court are of a different opinion. The statute gives to special bail the absolute right to be discharged, upon the surrender of the principal, at either of the periods specified. The death of the principal can not prejudice this right. The bail do not undertake for the life of the principal; but for his surrender if alive. They are discharged by his death. The limitation of the English ruléis not adopted by the legislature, and the court have no authority to insert it by interpretation.
Judgment for the defendant.
