
    Woolfolk v. The State.
    Under art. 5, 2 K. S. p. 364, the death of the principal in a recognizance, after forfeiture entered, may be pleaded by the bail in bar of an action against him upon the recognizance, except for costs.
    APPEAL from the Tippecanoe Circuit Court.
    
      Thursday, June 24.
    
      
       Counsel for the appellant cited The People v. Manning, 8 Cow. 299; Sparrow v. Lowgate, W. Jones, 29; 1 Tidd’s Pr. 238, 239; Mannin v. Partridge, 14 East, 599; White v. Blake, 22 Wond. 613; Lewis v. Brackenridge, 1 Blackf. 113; White v. Guest, 6 id. 228; Beers v. Haughton, 9 Pet. 330.
    
   Worden, J.

Complaint by the state against John B. Allen and Edward S. Woolfolk, upon a recognizance entered into by them on the 27th day of April, 1854, for the appearance of Allen before the Tippecanoe Circuit Court, at the next term thereof, to answer to a charge of assault and battery with intent to commit a felony. Averment of the non-appearance of Allen, and the forfeiture of the recognizance.

The defendant, Woolfolk, appeared and answered, as to all except the costs, that Allen on the 15th of August, 1855, died, whereby he was prevented from surrendering him in discharge of the recognizance.

To this answer the prosecuting attorney demurred, and assigned the following cause of demurrer: r'

“ Because the answer shows that said Allen departed this life on the 15th of August, 1855, more than one year after the forfeiture of the recognizance, during which time the said Allen could have been surrendered in Court in discharge of the recognizance, but does not show any cause for not surrendering the said Allen after forfeiture, and before his death.”

This demurrer was sustained by the Court. Woolfolk excepted, and there was final judgment against him.

This is the only error assigned.

It is provided by statute that “ The bail, at any time before final judgment against him upon a forfeited recognizance, may surrender his principal in open Court, or to the sheriff, and upon the payment of all costs, may thereupon be discharged from any further liability upon the recognizance.” 2 E. S. p. 366.

The question arises whether, under this statutory provision, the death of the principal after forfeiture entered, can be set up by the bail in bar of an action except for costs against him on the recognizance.

At common law, in civil cases the bail became fixed and liable to be proceeded against, upon the return of non est inventus to a ca. sa. issued against the principal. But still, by the favor and indulgence of the Courts, he might, within four days after the return day of the process against him, surrender his principal, and procure an exoneretur to be entered. Vide Lewis v. Brackenridge, 1 Blackf. 112 p White v. Guest, 6 id. 228. But this method of procuring an exoneretur, by surrendering the principal after the bail became fixed, was considered a matter of favor and indulgence, and not a matter of right; hence the death of the principal after the bail became fixed, would not entitle the bail to an exoneretur. Davidson v. Taylor, 12 Wheat. 604.

The right of the bail, under the statutory provision above quoted, to surrender the principal at any time before final judgment against himself, is absolute, and does not depend upon favor and indulgence, or the discretion of the Court, hence the decision in Wheaton, which is undoubtedly in accordance with the common law, is not applicable.

The effect of the recognizance must be determined by the law regulating the right of the surety to surrender' his principal, as much as if that law were incorporated into the recognizance and made a part of it. What is the effect of the recognizance then, so far as the surety is concerned? It is that on forfeiture, he will pay the amount, or surrender the principal, before final judgment is rendered against himself.

Where he is prevented, by the death of the principal, from making the surrender, it seems to us, both on principle and authority, that he is discharged from liability. .It is like a bond with a condition, compliance with which has been rendered impossible by act of God. In such case no ■ action lies, as the performance is excused. Co. Lit. 206, a.

It has been held in several cases that where the principal has been discharged from imprisonment by virtue of insolvent laws, after the bail had become fixed by a return of non est to a ca. sa. against the principal, such discharge releases the bail. Such was the case of Beers et al. v. Haughton, 9 Peters, 329.

Story, J., in delivering the opinion of the Court, remarks as follows: “Now, the doctrine is clearly established, that where the principal would be entitled to an immediate and unconditional discharge if he had been surrendered, there the bail are entitled to relief by entering an exoneretvr without any surrender. This was decided in Mannin v. Partridge, 14 East, 599; Boggs v. Teackle, 5 Binn. 312; Olcott v. Lilly, 4 Johns. 407. And a fortiori, this doctrine must apply where the law prohibits a party from being imprisoned at all; or where by positive operation of law, a surrender is prevented. So that there can be no doubt that the present plea is a good bar to the suit, notwithstanding there has been no surrender, if by the law the principal •could not, upon such surrender have been imprisoned at •all.”

We think these principles are applicable to the case before ns. If the surrender of the principal is excused by virtue of insolvent laws whereby he is rendered not liable to imprisonment, we think the act of God, rendering it physically impossible to make the surrender, is an equally valid excuse.

G. S. Orth and J. A. Stein, for the appellant .

J. L. Miller, for the state.

But the case of Mather v. The People, 12 Ill. R. 9, is directly in point. That was a case where, as in the present, a forfeiture had been taken, and the surety pleaded the death of the principal after the forfeiture. The statute of Illinois in relation to the right of the surety to surrender his principal after forfeiture, and before final judgment against himself on the recognizance, is similar to-our own. Upon full examination, it was held that the plea was a good bar to the sci. fa. In concluding the opinion - of the Court in the ease, Trumbull, J., makes the following remark, which is equally applicable here, viz.: “ The liability of the principal undoubtedly became fixed by the forfeiture of his recognizance, but the statute gives his security further time within which to discharge -themselves, and of the benefit of this provision they ought not to be deprived by the death of the principal.”

Per Curiam. — The judgment is reversed. Cause remanded for further proceedings not inconsistent with this opinion.  