Boyer v. Herty
1 Cranch 251
U.S. Circuit Court for the Dis...1805Check Treatmentstopped
and 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.
The motion was overruled.