Opinion
July Term, 1808.
Surrender of the principal by his bail at any time before final judgment upon the scire facias discharges the bail from the costs of the scire facias. A witness summoned by each party to a suit is entitled to compensation from each.
THE plaintiffs recovered a judgment against Morris in Granville County Court, and after the return of a capias ad satisfaciendum against him they sued out a scire facias against the defendants, who were the bail of Morris, upon which scire facias the plaintiffs obtained judgment, from which the defendants appealed to the Superior Court of said county; and the transcript of the record being filed with the clerk of the Superior Court, the defendants brought Morris into court and surrendered him in discharge of themselves. The plaintiffs admitted the surrender, prayed the body of said Morris into custody and judgment against the defendants for the costs on the scire facias up to the time of the surrender, which was objected to by the defendants.
From Granville.
In this case each party had summoned the same person as a witness, who moved the court to prove his attendance against each; and two questions were referred to this Court: first, whether the plaintiffs were entitled to judgment against defendants for costs upon the scire facias up to the time of the surrender; and, secondly, whether the witness summoned by each party was entitled to compensation from each.
The surrender of the principal, being an effectual discharge of the bail, subjects the plaintiffs in the action to the costs. For the act of Assembly provides that the party cast shall pay the costs. Had the surrender (189) been put in issue and found for the defendant, this must have been the consequence, and the same effect must follow if the plaintiff, knowing that the surrender can be established, surceased his scire facias.
A witness summoned for both parties is entitled to compensation from both; his delinquency would expose him to forfeitures at the instance of both; it is but just that his punctuality should benefit him.