
    Winninger v. The State.
    Recognizance.—Complaint on a forfeited recognizance. Breach, failure of principal to appear according to the terms. Answer, by surety, that' after forfeiture, and before commencement of suit, principal had enlisted as a volunteer in the army, and surety could not surrender him.
    
      Mield, that this is no defense.
    
      APPEAL from the Dubois Circuit Court.
    
      John Baker and W. G. Adams, for appellant.
    
      Oscar B. Hord, Attorney-General, for appellee.
   Erazer, J.

To a complaint upon a forfeited recognizance taken in a criminal case, alleging for breach the failure of the principal to appear according to the terms of the condition, an answer was filed by the surety, alleging that, after the recognizance was forfeited, and before the commencement of the suit, the principal enlisted as a volunteer in the army; wherefore the surety could not surrender him.

This is no defense. Eor aught that appears, the principal enlisted by the surety’s advice; nor do we know that the military authorities would not at any time surrender him to the surety on application.

The judgment is affirmed, with two per cent, damages and costs.  