By the Court
Warner, J.delivering the opinion.
Two grounds of error are assigned in this case to the decision of the Circuit Court.
First. That the Court erred in deciding that it was not compe*334tent for the security on the hail bond to prove a surrender of his principal during term time, by parol testimony.
Second. That the Court below erred in withholding from the jury all evidence of the death of Turley, the principal in the bail bond, after the return of non est inventus on the capias ad satisfaciendum, holding that the debt then became fixed upon the bail, so as not to be discharged by the death of the principal at anytime thereafter.
[1.] With regard to the first ground of error assigned, we are all of the opinion that the parol evidence, as to what was done by the Court during its session in relation to the surrender of the principal by his bail, was properly rejected. The proceedings of the Court, while in session, can only be known by its record. It is the duty of the security on the bail bond, when he surrenders his principal during term time, to call the attention of the court to the fact, and have an exoneretwr entered on the minutes of the court, so that the court may make such further order in the premises as the law requires. Without such exoneretwr being entered when the surrender is made during the session of the court, the security for the principal is not discharged. Tidd Practice, 241.
[2.] In relation to the second ground of error taken, we are of the opinion that the Court below erred in its judgment in ruling out the testimony of the death of the principal before final judgment on the scire facias against the bail, and in holding that the liability of the bail becamqfixed for the payment of the debt, from the date of the return of the sheriff on the capias ad satisfaciendum of non est inventus. By the common law, it would seem, the bail became fixed for the payment of the debt on the return of non est inventus on the capias; the courts, however, by rule, granted further indulgence to the bail to surrender his principal, but this indulgence was considered as matter of favour only, and not a matter of strict right; and if the principal died intermediate the return of non est inventus on the ca. sa. and the time limited by the rule of court for his surrender, the bail was not discharged.
In Mannin vs. Partridge this rule however to some extent would seem to have been relaxed. 14 East R. 599. In that case there was a return of non est inventus made on the capias, after which, and before the expiration of the time limited by the rule of the court for the surrender of the principal by his bail, the principal was discharged from the debt under a commission of bankruptcy, and obtained his certificate. The question made in that case was, *335whether the bail became fixed for the payment of the debt from the time of the return on the capias, of non esi inventus, so as to prevent the bail from being relieved? and the court held that it did not. Lord Ellenborough, in delivering the opinion of the court, is reported to have said. “ Bail are, to some purposes, said to b % fixed by the return of non est inventus upon the capias ad satisfaciendum, but if they have, by the indulgence of the court, time to render the principal until the appearance day of the last scire facias against them, and which they have the capacity of using, they cannot be considered as completely and definitely fixed till that period.”
In Beers et al. vs. Haughton, 9 Peters R. 329, the same principle was asserted. If the principal, being discharged by operation of law from the payment of the debt subsequent to the return of non est inventus on the capias and before the time allowed by the rule of the court for his surrender, will discharge the bail, why is it that the act of God, intervening between the return on the capias and the time limited for the bail to surrender his principal, will not also discharge him ?
In the one case the operation of the law prevents the surrender, in the other, the act of God prevents it, both events happening, after the return on the- capias of non est inventus by which it is said the bail, by the rule of the common law, become fixed for the absolute payment of the money. Whatever may be considered the common law rule on this subject, we think our own statute must control it, which in our judgment gives to the bail, not as a matter of favour only but as a matter of right, the privilege of surrendering his principal at any time before entering up final judgment on the scire facias. By the 15th section of the Judiciary Act of 1799, Prince, 423, it is declared, “All bail taken according to the directions of this act, shall be deemed, held, and taken as special bail, and as such be liable to the recovery of the plaintiff; but the plaintiff, after final judgment, shall not take out execution against such bail, until a capias ad satisfaciendum shall first be issued thereon, and the principal cannot be found, and shall also issue a scire facias returnable to the said court, which shall be served on the bail at least twenty days before the return thereof; and after the return of such capias ad satisfaciendum against the principal, and scire facias against the bail, and judgment thereon, execution may issue against the principal and bail, or either of them, or either of their estates, unless the hail shall surrender the principal at or before entering top final judgment on the *336scire facias, either in open court in term time, or to the sheriff of the county in which such principal shall reside, at any time in vacation.”
Before the hail becomes absolutely liable for the payment of the money to the plaintiff, by the provisions of this act, he must obtain final judgment for his demand. Then he must have issued thereon a ca. sa., on which there must be a return that the principal debtor is not to be found — then a scire facias must he sued out and served twenty days before court. After the return aforesaid shall have been made on the ca. sa., and the scire facias against the hail and judgment thereon, execution may issue against the principal and hail, or either of them, &c. unless the bail shall surrender the principal, at or before entering up final judgment on the scire facias, fyc. When the plaintiff has complied with all the requisitions of the statute on his part, then the liability of the bail becomes fixed, and he is entitled to have execution against him for the amount of his demand, müess the bail shall surrender the principal at or if are entering upfind judgment on the scire facias. The hail has the right under the statute, to surrender his principal at or before entering up final judgment on the scire facias. Before the liability of the bail becomes fixed, as we have seen, there must he a judgment on the scire facias. The plaintiff is entitled to such judgment, unless the bail surrenders the principal: but if the bail surrenders his principal, at or before the entering of such judgment, the plaintiff is not entitled to it; therefore, it is the right of the bail to make such surrender and prevent his liability from being fixed by the rendition of the judgment. The liability of the bail is not to he extended beyond the terms of his contract, and he must be presumed to have entered into the contract in full view of the law which regulated his liability, and is entitled to insist on all the rights which it gives to him; one of which is the right to surrender his principal at or before the rendition of the judgment on the scire facias. If therefore he could have shown on the trial the death of his principal, and that he was prevented by the act of God from exercising that right in making a surrender before final judgment on the scire facias, we think he ought to have been permitted to have done so, and that the court committed error in rejecting the testimony offered for that purpose. Let the judgment of the Court below he reversed and a new trial granted.