DAVIDSON AND ANOTHER, PLAINTIFFS IN ERROR, AGAINST TAYLOR, DEFENDANT IN ERROR
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In a bail case governed by English law principles as applied in Maryland, the Supreme Court held that when a principal dies before the return of a scire facias (a court writ), the bail cannot be discharged from liability, as the bail's obligation becomes fixed upon return of the ca. sa. (capias) and death of the principal before the scire facias return does not provide grounds for exoneration. The Court affirmed the judgment against the bail, rejecting their plea as legally insufficient.
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. Mr. Chief Justice Marshall delivered the opinion of the Court.
This is a case of bail, and is tó be decided by the princi - ples of English law, which the cáse finds constitute also the law and practice of Maryland, on the subject. According to these principles, the allowance of the bail to surrender the principal after the return of a ca. sa. is considered as a matter of favour and indulgence, and not of right, and is regulated by the acknowledged practice of the Court. To many purposes, the bail is considered as fixed by the return of the ca. sat But the Gourts allow the bail to surrender the principal within a limited period after the return of the scire fadas' against them, as matter of favour, and not as matter pleadable in bar. In certain cases even a formal surrender lias not been required, where ibe principal was still living, and capable of being surrendered, arid an eaionersiw.would be entered, and the principal discharged immediately upon the surrender. But the rule has never been.applied to cases where the principal dies before the return .of the scire facias. In such a case, the bail is considered as fixed by the return .of the ca.' sa., and his death afterwards, and before the return of the scire fa'das, does not entitle the bail toan exone-. retuv. , The plea is. therefore, bad; and the judgment is affirmed, with six per centum damages, and costs.
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United States v. Mack, 295 U.S. 480 (U.S. 1935)…But remission of liability, even within those limits, was matter of indulgence only. 1 Tidd’s Practice, 238, 239; 2 id., 1044. “To many purposes, the bail is considered as fixed by the return of the ca. sa.” Marshall, Ch. J., in Davidson v. Taylor, 12 Wheat. 604. If surrender was .allowable thereafter the privilege was given “ as matter of favour, and not as matter pleadable in bar.” Ibid. The court would exercise a sound discretion. Morsell v. Hall, 13 How. 212, 215. Accordingly the practice was to treat…
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Beers v. Haughton, 9 Pet. 329 (U.S. 1835)…d relief is granted, upon such terms as the circumstances of the case will warrant; and always upon payment of the cost of the suit against the bail. No stronger case upon this point can be put, than that of Davison v. Taylor, decided in this court, 12 Wheaton 604. “This,” say the court, “is a case of bail, and is to be decided by the principles of English law, which, the case finds, constitute the law and practice of Maryland on the subject. According to these-principles, tire allowance of the bail to surren…