been surrendered, the bail are entitled to their discharge: White v. Blake, 22 Wend. 612; Kelly v. Henderson, 1 Pa. St. 495; Frey v. Hebenstreit, 1 Rob. (La.) 561; Brown v. Dillahunty, 4 Smedes & M. 713; S. C., 43 Am. Rep. 499; Parker v. Sterling, 10 Ohio, 357; Ware v. Miller, 11 S. C. 13. So where the master enters into a recognizance for the appearance of his slave to answer to an indictment, the subsequent emancipation of the slave discharges the master from the obligation in the recognizance: Lewis v. State, 41 Miss. 686; State v. Berry, 34 Ga. 546. The surety is discharged where the principal is released under insolvent laws for debt contracted in another state: McGlensey v. McLear, 1 Harr. (Del.) 466; Kennedy v. Adams, 5 Id. 160.

Surrender of Principal.- Where the principal voluntarily surrenders himself, or is surrendered by his bail, to the proper authorities before the day stipulated in the bond, the surety is discharged. Such is the rule in both civil and criminal cases: Harp v. Osgood, 2 Hill, 216. The principal may make a voluntary surrender of himself without the agency, or even knowledge of his bail; and placing himself in the custody of an officer, for the purpose of being detained, is an effectual surrender by the principal to discharge the surety: Dick v. Stoker, 1 Dev. 91. So where an insolvent fails to obtain his discharge as an insolvent debtor, and voluntarily surrenders himself to the warden of the jail of the county, he complies with the alternative condition in the bond that he shall surrender himself to the jail of the county, and though such officer refuses to receive him, his bond is void, and his sureties released: Saunders v. Quigg, 112 Pa. St. 546. Where a defendant surrenders himself when a judgment to pay a fine is rendered against him, his bail are released from liability on the bond conditioned that he should appear, and if convicted, should render himself in execution, etc.: Mitchell v. Commonwealth, 12 Bush, 247. Where the sureties agree to surrender the principal, and are requested not to do so, and it is agreed to release them from the recognizance if they do not make the surrender, they are released from liability; or if they surrender the principal, and he is afterwards discharged by due process of law, they are likewise released: Shields v. Smith, 78 Ind. 425. So if the sureties surrender their principal to an officer whom they believe to be an officer de jure as well as de facto, they are discharged: Carter v. State, 43 Ark. 132. But the surrender to a deputy sheriff of a party under bail to appear and answer will not discharge his sureties. This has been held on the ground that the surrender should have been made to an officer who had power to commit the principal to prison, and this the deputy could not do: State v. Le Cerf, 1 Bail. 410. An administrator may surrender the principal for whom his intestate was bail: Wheeler v. Wheeler, 7 Mass. 168. Bail has a right to surrender the principal at any time before final judgment on scire facias, and the death of the party between the return of non est inventus and such final judgment will discharge the bail: Griffin v. Moore, 2 Ga. 331. So if the principal is surrendered within a reasonable time after the return of non est inventus, the bail is exonerated: Edwards v. Gunn, 3 Conn. 316. And though the bail is indemnified by their principal, yet they will be discharged if the surrender is made within eight days after the return against the bail: Brownelow v. Forbes, 2 Johns. 101. The bail may surrender his principal by causing his arrest, which is equivalent to a delivery, and releases the bail from liability on the bond: Sternberg v. State, 42 Ark. 127; Reese v. United States, 9 Wall. 13; Commonwealth v. Bronson, 14 B. Mon. 361. If one of several sureties in the bond surrenders the principal, this absolves all the sureties from liability, though the principal afterwards escapes: State v. Doyal, 12 La. Ann. 653.

Arrest of Principal. The accused, when admitted to bail, is in lega! contemplation delivered into the custody of his bail, who then have the right to take and surrender him in discharge of their liability at any time before the forfeiture of the bond, and it seems that a warrant is unnecessary to pro tect the bail in arresting the principal: State v. Cunningham, 10 La. Ann. 393. The arrest and imprisonment of the principal is, in law, a satisfaction of the judgment so long as the imprisonment continues, and during that time no action can be maintained against the surety: Konig v. Steckel, 58 N. Y. 475; Sunderland v. Loder, 5 Wend. 58. The bail may deputize another to arrest the principal, and he may be taken in another state at any time, in any place, and in almost any manner, as the bail or the person deputed may break open outer doors in order to take the principal: Nicolls v. Ingersoll, 7 Johns. 145; State v. Mahon, 3 Harr. (Del.) 568; Commonwealth v. Brickett, 8 Pick. 137; Ex parte Lafonta, 2 Rob. (La.) 495; Respublica v. Goaler of Philadelphia, 2 Yeates, 263; Parker v. Bidwell, 3 Conn. 84. But it has been held that the surety, in a recognizance after forfeiture by the default of the principal and surety, has no right to surrender the principal in order to exonerate himself from liability, or to arrest and detain the principal for that purpose: 3 Cush. 454.

Service of Principal in Army. — As to whether the fact that the principal was engaged in military service, at the time that he should have appeared to answer the charge, will discharge his bail, presents some difficulty, as the authorities are somewhat in conflict; but the true rule seems to be, that if such service is involuntary and forced, either from draft, military arrest, or other cause, the bail are excused from producing their principal, and their liability as sureties discharged: Commonwealth v. Webster, 1 Bush, 616; Alford v. Irwin, 34 Ga. 25; Commonwealth v. Terry, 2 Duvall, 383; People v. Cushney, 44 Barb. 118. But where the service is voluntary, either from enlistment or other cause, the bail is not discharged: Harrington v. Dennie, 13 Mass. 92; State v. Reaney, 13 Md. 230; Huggins v. People, 39 Ill. 241. So where the surety voluntarily surrenders his principal to the military authorities to act as a substitute in the army, he is not discharged from producing him at the time fixed: Shook v. People, 39 Id. 443. And where, after forfeiture of the bond, the surety finds the principal in military service in another state, and causes his arrest for the purpose of surrendering him, but he is taken from the surety by military officers, this does not discharge the bail from liability: State v. Scott, 20 Iowa, 63. In Gingrich v. People, 34 Ill. 448, where it appeared that the principal, without the consent or knowledge of the surety, enlisted in the military service, and there remained, beyond the power of the surety to arrest or produce him, or his own power to surrender, it was held that though this was not a good defense in an action on the bond, still it was ground for a continuance.

Subsequent Arrest, Indictment, or Imprisonment of Principal. — Whether either of these steps will exonerate the bail is a question upon which there is great conflict of authority, and the cases are about equally divided; but it seems that sureties in a bail bond or recognizance are relieved from liability by the second arrest and bail of their principal upon the same indictment: Peacock v. State, 44 Tex. 11; Roberts v. State, 2 S. W. Rep. 622 (Tex.); Lindley v. State, 17 Tex. App. 120. The same rule prevails where the accused is rearrested, and escapes from jail during his second trial for the same offense: Medlin v. Commonwealth, 11 Bush, 605. So if the principal is rearrested, and escapes from the court-room during trial, the bail is dis charged: Smith v. Kitchens, 51 Ga. 158; S. C., 21 Am. Rep. 232. Bail in a criminal case are discharged from liability by the arrest of the principal upon

the same charge in the same state by federal authority, and his imprisonment in another state: Commonwealth v. Overly, 80 Ky. 208; 8. C., 44 Am. Rep. 471. The sureties are exonerated by the commitment of the principal on an alias execution after a return of non est inventus on the first: Warren v. Gilmore, 3 Cush. 15. After a defendant in a ca. sa. has given a bond, and is rearrested at the instance of the plaintiff, the surety is discharged: Bell v. Rawson, 30 Ga. 712. Bail in a criminal case are exonerated from liability by the surrender of the principal by the governor of the state to the authorities of another state upon requisition papers: State v. Allen, 2 Humph. 258; State v. Adams, 3 Head. 259. Where the principal was under bonds to appear, and did appear, and was indicted and bound over, whereupon he was arrested to answer the indictment, and he then applied for his discharge, on the ground that he was under bonds, and was discharged, but did not appear for trial, it was held that the sureties were discharged; for, say the court, "when by virtue of a warrant lawfully issued upon an indictment for the identical offense for which he was held to answer, the sheriff had, by his arrest, taken the prisoner out of the custody of his sureties. . . . . Nothing short of a new bond, lawfully executed by them, would restore him thereto ": Smith v. State, 12 Neb. 309. The sureties are discharged when the principal is convicted of felony, and imprisoned for that crime, before the time for his appearance on the bond: Canby v. Griffin, 3 Harr. (Del.) 333; Way v. Wright, 5 Met. 381; Cooper v. State, 5 Tex. App. 215; S. C., 32 Am. Rep. 571; Caldwell v. Commonwealth, 14 Gratt. 698. Or if he is insane, and confined in an asylum: Fuller v. Davis, 1 Gray, 612.

It has been held that the sureties in a bond are not responsible for the failure of the principal to appear, when he has been arrested and removed from the county or state: Commonwealth v. Webster, 1 Bush, 616; People v. Bartlett, 3 Hill, 570. But exactly the contrary doctrine is maintained, and the bail held liable, in State v. Merrihew, 47 Iowa, 112; S. C., 29 Am. Rep. 464; Taintor v. Taylor, 36 Conn. 242; S. C., 4 Am. Rep. 58. And if the principal is convicted of another crime in a different state, and is imprisoned there at the time that he should appear to answer to the first charge, the sureties on his bond to appear and answer the latter charge are not excused: Cain v. State, 55 Ala. 170; King v. State, 18 Neb. 375; State v. Horn, 70 Mo. 466; S. C., 35 Am. Rep. 437; United States v. Van Fossen, 1 Dill. 407; Devins v. State, 5 Sneed, 622; State v. Burnham, 44 Me. 278. So if the principal is arrested, tried, and convicted of another crime subsequently to the execution of the bond, and escapes from custody, the sureties are not discharged: Wheeler v. State, 38 Tex. 173. Or if the principal is in prison for a subsequent crime not bailable, and escapes, the sureties are liable: State v. Frith, 14 La. 191.

The sureties are not discharged by the subsequent arrest of the principal on a different charge, and giving a bond with other sureties therefor: West v. Colquitt, 71 Ga. 559; S. C., 51 Am. Rep. 277; Hartley v. Colquitt, 72 Ga. 351.The conviction of the accused of a different offense before the condition in the first bond is broken does not excuse the sureties therein: Smith v. Barker, 6 Watts, 508. And the mere fact that he is in prison on conviction of another crime will not excuse his bail, unless such confinement is for life, or a long term in another state: Van Schaick v. Trotter, 6 Cow. 599.

Appearance of Principal. If the bail bond or recognizance provides that the principal shall appear and not depart without leave of court, the sureties are not generally discharged if the accused appears and is put on trial, unless he is formally surrended according to law: Lee v. State, 51 Miss. 665;

State v. Tiernan, 39 Iowa, 474; State v. Martel, 3 Rob. (La.) 22. But he must appear from day to day of the first term, or from term to term, until convicted or discharged: Lee v. State, 51 Miss. 665; People v. Stager, 10 Wend. 431; Moore v. State, 28 Ark. 480; People v. McCoy, 39 Barb. 73; Chase v. People, 2 Col. 528; Dennard v. State, 2 Ga. 137; State v. Norment, 12 La. 511. On the other hand, it has been held that the obligation of the sureties is discharged when the principal appears and submits himself to the jurisdiction of the court: Wilson v. People, 10 Ill. App. 357. And that after the trial has commenced and the jury are sworn, the bail are no longer liable for the appearance of the principal: Willis v. Commonwealth, 2 S. W. Rep. 654 (Ky.). So where the principal was bound to appear and abide the order of the court, and he did so appear, and was ordered to give a new bond, which he refused to do, his sureties were held to be relieved from liability on the first bond: Naugatuck v. Bennett, 51 Conn. 497. Again, where the principal was bound to appear and answer one charge, and he did so, and was indicted for another and distinct offense not based on the first, his bail were held discharged as to his appearance on the first indictment: 16 Iowa, 314. Where the principal appeared and was placed in custody, and while the jury were out considering their verdict, he escaped, it was held that the sureties were not liable: Commonwealth v. Coleman, 2 Met. (Ky.) 382; Askins v. Commonwealth, 1 Duvall, 275; contra, Wintersoll v. Commonwealth, 1 Id. 177; but if the principal is rearrested on a bench-warrant, the bail are not liable on the bond: Smith v. Kitchens, 51 Ga. 158. And after the jury have returned a verdict of guilty, the sureties are not liable if the principal escape: Wilson v. Mason, 14 La. Ann. 446.

Continuance, Change of Venue, etc. - Where the bail bond or recognizance is conditioned that the principal shall appear at the next term of court, etc., and he does so appear, but no proceedings are had, and the case is continued until a later term, the sureties are generally excused, and not liable for his appearance at such subsequent term. However, some cases are found holding the contrary doctrine: State v. Plazencia, 6 Rob. (La.) 417; State v. Smith, 66 N. C. 620; State v. Ryan, 23 Iowa, 406. Or if no term of court is held at the time specified for the appearance of the principal, his bail must produce him at the succeeding term: Commonwealth v. Branch, 1 Bush, 59. But the rule sustained by the major portion of the authorities seems to be that, where the principal is required to appear at a specified term, and the bond does not provide for his appearance from term to term, his appearance at the term named is a compliance with the condition in the bond, and his failure to appear at a subsequent term to which the case is contiuued will not subject the sureties to forfeiture of the bond: Colquitt v. Smith, 65 Ga. 341; People v. Greene, 5 Hill, 647; Lamb v. State, 73 Ga. 587; People v. Swales, 33 Hun, 208; Jones v. State, 11 Tex. App. 412; Townsend v. People, 14 Mich. 388. So if the principal appears, and the trial is postponed with notice to the principal that he will be notified when to appear, his bail cannot be declared forfeited if such notice is not given: Flynn v. State, 42 Ark. 315. Where the bail bond provides that the principal shall appear at the next term, and any subsequent term thereafter, the latter clause means at the next regular succeeding term, and not at any distant term to which a postponement may be had, without reference to any intervening term. So where the prosecution and the principal stipulated that the case may be postponed until an indefinite time, and not until the next regular term, it was held that the sureties and principal were released from obligation: Reese v. United States, 9 Wall. 13. Where the sureties are bound for the appearance of their

principal at a certain term of the county court, and the judge changes the venue from that to the circuit court, the sureties are not liable for a failure on the part of the principal to appear at the latter court: Adams v. People, 12 Ill. App. 380.

Indictment for Different Crime. — Where a principal was held to bail for his appearance upon a charge of swindling, and he was indicted for theft, and failed to appear, it was held that the indictment for theft would not support a judgment of forfeiture on the bail bond for swindling: Addison v. State, 14 Tex. App. 568. So in People v. Sloper, 1 Idaho, 158, the rule is stated to be that sureties for the appearance of the principal can only be held liable for his default, in the event that an indictment is found for the particular offense named in the undertaking. See also People v. Hunter, 10 Cal. 502. But in People v. Meacham, 74 Ill. 292, it is said that it does not matter whether the principal in the recognizance was examined on the charge for which he was indicted, or some other, provided it is a bailable offense; in the latter event the recognizance is good, and the sureties bound.

Quashing Indictment against the principal, who has given bail to appear and answer, is a discharge of the obligation, releases the surety, and authorizes the departure of the accused without leave: People v. Fenton, 36 Barb. 429. The same rule is held in State v. Glenn, 40 Ark. 332, where it is further said that a reversal of the judgment does not revive it.

Miscellaneous Instances where Bail are not Liable. The sureties in a bail bond, executed by one admitted to bail pending an appeal, are not bound, where the charge is not such as will warrant a prosecution, and it is not shown that the sureties were actually aware of the charge preferred, and of which the accused was convicted, nor that they consented to become bound for his appearance to answer any charge but the one stated in the bond: State v. Jones, 3 La. Ann. 9.

Where the condition in the bond is not authorized by law, as where the condition is more onerous to the surety than that warranted, or where a beneficial condition is omitted, the bond cannot be enforced: Thomas v. Stewart, 2 Penr. & W. 475; Tucker v. Davis, 15 Ga. 573; Loyd v. McTeer, 33 Id. 37; Alexander v. Bates, 33 Id. 125.

A recognizance taken by a sheriff of one county in another is extraofficial, and void: Harris v. Simpson, 4 Litt. 165. Pardon of the principal before conviction, if accepted by him, excuses the sureties, but if not accepted, they are liable: Grubb v. Bullock, 44 Ga. 379. Where the sureties give a note for the amount of the bail after judgment and forfeiture against the principal, and such judgment is reversed, the bail are not liable on the note: Tappan v. Van Wagenen, 3 Johns. 465.

So where bail was given pending an appeal, and the judgment against the principal was reversed, and the indictment was nol prosequied in the lower court, after which a new indictment was found for the same offense, it was held that the sureties on the old indictment were discharged, and that they were not liable on the one last found: Lamb v. Smith, 56 Ga. 589. The bail are exonerated by judgment of the lower court in favor of their principal, thongh the judgment is reversed on appeal: Butler v. Bissel, 1 Root, 102. Surety is not liable on the bond, where judgment is entered by agreement against one only of the principals named therein: Commonwealth v. Clay, 9 Phila. 121. The statute provided that the principal must be surrendered within ten days from judgment against him, but no execution issued within that time; at its expiration one did issue, when the principal offered to surrender and release