
    Cain et al. v. The State.
    
      Scire Facias against Bail on Forfeited Recognizance.
    
    1. When hail are dicsharged, hy confinement of principal under legal process.— To a scire facias on a forfeited recognizance, it is not a good plea by the sureties, that their principal was, at the time of the rendition of tho judgment nisi, confined in the penitentiary of another State, under a conviction for felony there had before a court of competent jurisdiction ; for, ■non constat that the confinement did not terminate before plea pleaded, or before the rendition of final judgment. But such confinement, even if it still continued, would not discharge the sureties; since the impossibility of performance created by act of the law, such as excuses the non-performance ot a condition, must be by the act of the law which creates the obligation.
    2. Judgment final against hail; for what amount rendered. — -When judgment is made final against bail, the court is authorized by the statute (Rev. Code, § 4258) to make it absolute for the full amount of the penalty, or any part thereof, according to the circumstances of the case; and the confinement of the principal in the penitentiary of another State under a conviction for felony, since it renders his appearance or surrender impossible, “might be a circumstance inducing the court to mitigate the judgment to a sum less than the penalty.”
    AppeaI from tbe Circuit Court of Tusbaloosa.
    Tried before tbe Hon. Wm. S. Mudd.
    H. M. Somebville, for appellants. —
    Tbe sureties are excused for tbe non-performance of tbe condition of tbeir bond, when performance was prevented by “tbe act of tbe law.”— Bacon’s Abr., tit. Condition, 2; 8 Cowen, N. Y. 298-9. That an arrest and imprisonment for another offense is tbe act of tbe law, see People v. Bartlett, 3 Hill, N. Y. 570; Belcling v. The State, 25 Ark. 315; S. C., 4 Amer. Rep. 27. Tbe case of Ingram v. The State, 27 Ala. 17, sustains the same principle, though it bolds that tbe sureties are not discharged, where tbe subsequent arrest and imprisonment are in tbe same State with tbe original proceeding, because they have an adequate remedy by habeas corpus. Where tbe subsequent arrest and imprisonment are in another State, tbe authorities are conflicting on tbe question, whether or not tbe sureties are thereby discharged; and the Supreme Court of tbe United States, by a bare majority of four to three judges, held that they were not; but tbe weight of authority and tbe force of reasoning, as expressed in tbe dissenting opinion of Field, J., are against that conclusion, and the decision was by a minority of the whole court. — Taylor v. Taintor, 16 Wallace, 376.
    JNO. W. A. Sakfoed, Attorney-General, for the State,
    cited Bev. Code, §§ 4250-51; 1 Bishop’s Orim. Pro. §§ 694-5; Taylor v. Taintor, 16 Wallace, 366.
   BRICKELL, C. J. —

George M. Simpson entered into recognizance, with the appellants as his sureties, to appear at the Fall term, 1875, of the Circuit Court of Tuskaloosa, to answer an indictment, therein pending against him, for an assault with intent to murder. Failing to appear, a judgment nisi was rendered on the recognizance, against him and his sureties, and a scire facias to show cause why the judgment should not be made final, returnable to the nest term, was awarded against him and his sureties. The scire facias haying been returned not found as to him, but executed on the appellants, they appeared, and pleaded in bar, that when the judgment nisi was taken, the said George M., the principal, was in custody of the lawful authorities of the State of Arkansas, confined in the penitentiary of that State, under a conviction for felony, there had before a court of competent jurisdiction. To this plea the State demurred; the demurrer was sustained, and final judgment rendered against the appellants, which is now assigned as error.

We cannot doubt that the demurrer was properly sustained. The plea limits the confinement of the principal in the penitentiary of Arkansas to the time of the rendition of judgment nisi. The term of imprisonment to which he was sentenced is not averred, and, consistently with every fact stated, that term may have expired, and he be at liberty^ to appear in obedience to his recognizance, and in exoneration of his bail, before plea pleaded, or the rendition of final judgment; or, he may, within the knowledge of his bail, have-returned to this State, so that they could have arrested and restored him to the custody of the law.

The judgment nisi, under the statute (B. C. § 4258), is not necessarily made absolute for the penalty of the recognizance, or wholly discharged. The court, according to the circumstances of the particular case, may make the final judgment absolute ®for the entire sum expressed, or any part thereof. The impossibility of the appearance of the principal at the time of the judgment nisi, not continuing until the final judgment, not preventing his voluntary appearance, or his arrest by his bail, and surrender, cannot excuse the default; while the fact of such impossibility, though it may not be of tbe character wbicb will excuse entirely, existing when the judgment nisi was taken, and continuing until final judgment, might be a circumstance inducing the court to mitigate the judgment to a less sum than the penalty. Such is the purpose of the statute in clothing the court with the power of rendering the final judgment for the whole, or a part only of the penalty, according to the circumstances of the particular case. — Devine v. State, 5 Sneed, 623.

Apart from this consideration, accepting the plea as if the averred impossibility of appearance of the principal not only existed when the judgment nisi was taken, but was continuous to the day of the final judgment, does it excuse the breach of the condition of the recognizance ? If the performance of a condition, possible when made, becomes impossible by the act of God, or by the act of the obligee, or by the act of the law, the obligation is discharged. No act of God — no act of the State of Alabama, the obligee of the recognizance — has intervened to prevent the performance of the condition. If performance has been prevented by the act of the law, it is not the act of the law of the State of Alabama. The laws of this State authorized the execution of the recognizance, prescribed its condition, defined the extent of its obligation, and the relative rights and, duties of the parties to it. In reference to this law, the parties contracted; and this law silently incorporated itself into, and became part of the contract. Can it be supposed, that the parties contemplated that non-performance of the condition should be excused by the act of any other law, than that in reference and in obedience to which they contracted ? Gan a foreign law, of which courts do not take judicial notice — enforced only as matter of comity, when not inconsistent with our laws and policy, and when contracts have been made in reference to, or rights have vested under it, create an impossibility to enforce our own criminal laws, incapable of enforcement elsewhere ? On what principle, or on what consideration of policy, or of comity, or of right springing from the constitutional relations existing between the several States, shall the State abdicate the enforcement of its criminal laAvs, and award supremacy to the criminal law of a sister State? That is the proposition of the plea, when reduced to its last analysis.

The relations existing between the several States; the facility of passing from one to another, separated often by mere imaginary lines; members of a common government; the citizens of each entitled in any or all to rights and immunities, and the changes of residence from one to another which are constantly being made, have often given occasion for tbe consideration of this question; and uniformly, so far as we bave discovered, tbe courts bave decided, tbat tbe law wbicb renders tbe performance impossible,. and discharges tbe obligation, must be a law of force in. tbe State where tbe obligation was assumed, binding on her authorities. Tbe case of Taylor v. Taintor, 16 Wall. 366, is an exhaustive discussion of the question, and tbe authorities bearing on it. The same case' may be found in 36 Conn. 242, and 4 Amer. Rep. 68.

At common law, when bail was given, and tbe principal rebeved from tbe custody of tbe law, be was regarded, not as freed entirely, but as transferred to tbe “ friendly custody ” of bis bail. They bad a dominion over him, and it was their right, at any time, to arrest and surrender him again to tbe custody of the law, in discharge of their obligation. They were sometimes said to be bis jailors. Without process specially addressed to them, in person, or by agent, they could pursue and take him, in bis own bouse, though a violent entry was necessary, or on the Sabbath, or follow him into another State. They were said to bave tbe principal always upon tbe string, and they may pull it when they please, to surrender him in their own discharge. This right of bail is of such importance tbat it has been introduced into, affirmed, and regulated by our statutes. — It. C. §§ 4250, 4251. Tbe surrender, made at any time before tbe discharge of tbe bail, exonerates them under these statutory provisions. By their own act — by their voluntary intervention in tbe course of tbe administration of tbe criminal law — they acquired custody of tbe principal.. If negligently they permitted him to pass beyond tbe jurisdiction of the State, it was their own fault, tbe consequence of wbicb they must abide, and it cannot be received as an excuse for a breach of tbe recognizance.

We repeat our concurrence in tbe judgment of tbe Circuit Court, and it must be affirmed.  