
    James J. Duncan v. John W. W. Tindall and others.
    The bail in an undertaking for a defendant arrested in a civil action, executed under section 157 of the civil code (S. & O. 993), is exonerated in the event that judgment be rendered in favor of the defendant upon a trial on the merits of the action, although upon a second trial, under the act to-relieve district courts, etc. (S. & C. 1155), or upon a new trial, after reversal of such judgment by proceedings in error, a judgment be finally ren dered against the defendant.
    Motion for leave to file a petition in error to reverse the-judgment of the district court of Washington county.
    The original action was brought in the court of common-pleas of Washington county, by Duncan against Tindall,. Cohen and Follett, on an undertaking executed July 7thr 1865, by Tindall, and the other defendants as his bail, under section 157 of the civil code, for his release from arrest under an order of arrest issued at Duncan’s instance, in a civil, action, in said court, in which Duncan was plaintiff and Tindall was defendant. The undertaking was executed to Duncan, in the presence of the sheriff, and conditioned that, if' judgment should be rendered in the action against Tindall,, he would render himself amenable to the process of tha court thereon; or, in default thereof, that the obligors would pay the condemnation money and costs.
    The petition and apswer show that at the March term, 1866, of the common pleas, the case in which the undertaking was given was tried and resulted in a judgment against Duncan, and in favor of Tindall, and that the latter was directed to go hence without day. That afterward, at the October term, 1866, a second trial of the case, under the statute, resulted in a similar judgment; and that “nothing was done to interfere with or reverse that judgment, until April 9th, 1867.” What was then done, does not appear from the record; but the petition states, and the answer does not deny, that at the October term, 1868, of the common pleas, Duncan recovered a judgment against Tindall in the original action in which the undertaking was given. The amount of the judgment is stated, as is also the fact that Tindall was not rendered amenable to the process of the court thereon, and that the judgment remains unpaid, etc.
    Upon this state of facts the common pleas gave judgment for the defendants Cohen and Eollett. Tindall was not served. On error, this judgment was affirmed by the district court. To reverse the judgment of affirmance, the plaintiff Duncan presents his motion for leave to- file a petition in error.
    
      R. C. & J. F. Hoffman (with S. 8. Knowles), for the motion:
    This case involves a consideration of section 157 of the civil node, and raises the question whether the words “If judgment shall be rendered in the action against the defendant,” means a judgment on first or second trial, or final judgment in the action. We submit that “ judgment,” within the meaning of the section, is not any judgment that might be obtained by accident or otherwise, during the progress of an action, but the judgment in which the action should finally result. The purpose of an action is to ascertain and fix the rights of the parties, and that is only accomplished by its final determination. The intermediate trials' and judgments «an be of no importance to the parties, and the code certainly cannot mean to make any suck judgment or judgments the condition of the bail’s undertaking. If judgment had been for the plaintiff upon the first or second trial, and the final judgment, whether on second or third trial, had been for the defendant, it would not be pretended that the bail was liable, and yet “judgment” was “rendered in the action,” etc. According to section 170 of the code, if judgment is rendered .against the principal, and suit brought against the bail, the court may stay proceedings against the bail, in case proceedings in error are commenced; and should the judgment .against the principal be reversed, and “ the principal discharged from such suit,” the bail will be discharged notwithstanding any number of judgments had before that been rendered in the action against the principal. The mere reversal of a judgment against the principal, or the granting to him a new trial, will not discharge the bail. “ The principal ” must be “ discharged from such suit, ” and that can cnly be done by a judgment that puts an end to, and finally •determines the action and fixes the rights or liabilities of the parties; and that is the only judgment contemplated by the undertaking in this action, and by the code.
    
      M. D. Follett, for himself and Cohen:
    The bail were legally discharged by the judgment in favor of Tindall at the March and October terms, 1866, in the original action in which their undertaking, was given. By that judgment Tindall was directed “to go hence without day,” as to that action.
    If, after these judgments or either of them, the bail had :any authority to arrest Tindall and bring him into court or to surrender him to the sheriff under the provisions of sections 166 and 167 of the civil code, and had they thus surrendered him, he would have been entitled to an immediate discharge.
    The bail were not only discharged, but they may plead the same matter as a bar to a suit on the undertaking.
    See Gilmans Adm'r v. Perkins, 11 N. H. 345, 346; Beers et al. v. Houghton, 9 Peters, 329, 330, 358; Tousey v. Avery, 11 Ohio, 90, 93; Mannier v. Partridge et al., 14 East, 599 
      et seq.; Durham v. Macomber, 5 Wend. 113; Trumbull v. Healy, 21 Wend. 670; Ingersoll v. Strong et al., 9 Metc. 447; Collamore v. Fernald, 3 Gray, 318, 319; Lockwood v. Jones, 7 Conn. 431, 439, 440, 441.
   McIlvaine, J.

The bail in an undertaking for a defendant arrested in a civil action, executed under section 157 of the civil code (S. & C. 993), is exonerated in the event that judgment be rendered in favor of the defendant upon a trial on the merits of the cause, although a judgment may be rendered finally against the defendant upon a second trial undei the provisions of the act to relieve district courts (S. & 0, 1155), or upon a new trial after the reversal of such judgment on proceedings in error.

The 157th section reads as follows : “ Bail may be given by the defendant on his arrest, or at any time afterward,, before judgment. It shall be done by causing one or more sufficient bail to execute a written undertaking to the plaintiff, in the presence of the sheriff, to the effect that if judgment shall be rendered in the action against the defendant, he will render himself amenable to the process of the court thereon.”

The plaintiff in error assumes that there is error in this-record, if the term “judgment” in the condition of the--undertaking means “final judgment”, and final judgment means the last judgment on the merits; or (as in this case)the judgment rendered against the defendant after reversal.

These propositions are true, but the conclusion is not. It may be admitted that the bail can be charged only in cases-, wherein the last judgment on the merits is against the defendant; and not where former judgments against him have-been vacated or reversed, with a final judgment in his favor. But it does not follow that the bail can be charged in cases-where the judgment on the first trial is in favor of their principal, and upon the last trial against him. That depends upon the question, whether the bail have or have not been exonerated from the obligation of the undertaking.

Section 168 of the code provides that “the bail will be exonerated .... by Ms (defendant’s) legal discharge from the obligation to render himself amenable to the process-of the court,” etc.

The “obligation” of the defendant here referred to, manifestly cannot mean the obligation incurred by the terms of the undertaMng, for the mason that that obligation rests-alone upon the obligors, or those who undertake; and the-defendant in the action is not required by the statute to execute it. What obligation, then, is it from which the defendant may be legally discharged? We answer: the obligation imposed upon him by the arrest — his obligation to remain in custody or under the power of his bail, as long as-that custody or that power can lawfully be continued. He is under no other obligation from which he can be discharged.

This section is as much a part of the undertaking as if' its terms were incorporated in the writing. The real question, then, in the case is — was the principal, at any time between-the execution of the undertaking and the return of the summons in the action against the bail, legally discharged from their custody or their power to arrest and surrender him.

Had the principal remained in the custody of the sheriff in the jail of the county, until judgment on the first trial had' been rendered in his favor, it cannot be doubted, that, of legal right, he would have been entitled to an immediate discharge. To hold, under this statute, that the defendant in such case could be detained in prison' for thirty days awaiting the pleasure of the plaintiff to put the cause upon the second trial docket, or for three years to commence proceedings in error,, would be an unjustifiable construction of a law in deprivation of personal liberty.

And wherein is the difference between that ease and this ?• By giving the undertaking, the defendant was transferred from the custody of the sheriff to that of Ms bail. Not in fact, but in law. Section 166 of the code provides that the bail may surrender the defendant to the sheriff at any time-before they are finally charged; and section 167 authorizes Ms arrest at any time, for the purpose of surrender. By fair reasoning it would seem to follow, that the bail, after judgment in favor of their principal, can have no legal right to arrest and surrender him to the sheriff, if, eo instanti that he is surrendered to the sheriff, he must, of legal right, be discharged. If the sheriff has no right to hold him, even for an instant, he has no right to accept the surrender, nor would the bail have any right to arrest and surrender him. And if the right to arrest and surrender their principal was given, by the law, to the bail as their security, and afterward is taken away by the act of the law, they should not be bound by an undertaking which was entered into upon the faith of that .security.

Motion overruled.

Scott, O.J., and Welch, White, and Day, JJ., concurred.  