Lopeman v. Henderson

Gibson, C. J. Had the principal been arrested oh a' bail-piece in an action of debt, the ■ authority to detain him by it would have been dissolved 'by the coming into operation of the act of 1842; and the bail would, without more, have been exonerated. But the action was in case .for trover and conversion, and the assumption by. the court, that the principal had been discharged under the act, was contrary to the fact. Still an actual discharge of the principal by a-court of competent jurisdiction; whatever the ground of it,, must necessarily exonerate the bail. Had the surrender of the principal become impossible, by discharge of his person from the-custody of the bail on habeas corpus, the bail would indisputably have been discharged from his recognisance by reason that performance of the condition had been interdicted by competent authority. He would have- been entitled to have an exoneretur entered on the ' bail-piece, or to plead the discharge to a scire facias at his election. But the person of the principal was within the court’s control without a habeas corpus. He was in the custody of the court’s special jailer, who was as much bound to obey its order as would have been the sheriff, or its general jailer. The principal, then, being in court at the return-day of the appeal, was discharged on motion; and the bail was consequently ipso facto exonerated. Judgment affirmed.