Opinion
Memorandum. — In the winter vacation, to wit: on the 19th day of January, 1841, the Honorable Richard H. Bayard having been elected to the Senate of the United States, resigned his office of chief justice of this State; and the Honorable James Booth, of New Castle, was appointed in his place on the 12th of March, 1841, and took his seat at the commencement of this term.
J. A. Bayard, for the bail.
Gilpin, contra.
CAPIAS CASE. Cepi corpus and bail bond.
The defendant appeared and was delivered to John W. Layton his special bail; and afterwards, before the trial term, and before surrender, he was convicted of a felony and imprisoned in another county.
On motion of J. A. Bayard for the special bail, suggesting that Jacob E. Griffin had been convicted by this court at its late session in Kent county, of the crime of kidnapping, and sentenced by the court to four years imprisonment, rule on plaintiff to show cause why an exoneretur should not be entered on the bail piece.
On the rule coming up for hearing, Mr. Bayard urged that Griffin was civilly dead: that by the act of the court itself, the court had put it out of the power of the bail to surrender his principal, and he supposed the exoneretur would be entered of course.
Gilpin, Attorney-general, for plaintiff, could not consent to the exoneretur, but submitted the matter to the decision of the court.
Per Curiam:
Bail may be discharged by the act of God, as the death of the principal; or by the act of the law, as by the conviction and transportation or imprisonment of the principal for felony, which puts it out of the power of the bail to surrender him. ( Petersdorf on bail, 395.) And the court will enter an exoneretur even where they would not grant a habeas corpus to bring up the body. ( Wood vs. Mitchell, 6 Term Rep. 24; Fowler vs. Dunn, 3 Burr. 2034.) But in Vergen's case (2 Strange 1217,) who was convicted of a felony and pardoned on condition of transportation, and who had also given bail in a civil action depending against him, a habeas corpus was granted, and he was transferred from the sheriff to the marshall in discharge of the bail, and immediately returned to the sheriff. Even where the habeas corpus has been refused as an improper interference with the criminal commitment, an exoneretur has been entered, in favor of the bail.
Rule absolute.