This is an attempt by the principal to throw this debt upon his bail; a case not to be favoured. The counsel for the prisoner, having relinquished all his exceptions but two, the Court will decide upon them only.'
1. That the bail was fixed by the judgment on the scire facias and could not surrender afterwards. The fact is, that the plaintiff in the scire facias was not present when judgment was entered, nor did he wish the judgment to be entered, and on the day of its entry, he requested the aider-man to discontinue the suit, who made an entry of discontinuance on his docket; so that upon the whole there was no judgment. Under the circumstances of the case, the aider-man had a right to strike out the entry of the judgment, and enter a discontinuance.
2. That the bait had only six months from judgment to surrender his principal. The answer is plain ; he has six months by the terms of the recognisance, but he has moreover ten days from the service of the scire facias, to make the surrender, by the express words of the law. Of this neither the plaintiff nor the alderman could deprive him; but in truth no person but his principal wishes to deprive him of it. The case cited from Teates, is not to the point. The decision was on another act of assembly, which did not allow the bail ten days froth the service of the scire facias. ^Ve are of opinion, that the prisoner should be remanded.
Prisoner remanded.