ALLEN v. BRESLAUER et al., 8 Cal. 552

Terry, C. J., after stating' the facts, delivered the opinion of the Court—Burnett, J., concurring. The question presented is, whether, under this state of facts, defendants ye liable. We think not. The Legislature, when providing for the surrender of defendant within ten days after judgment, evidently contemplated that the plaintiff should take siichi measures as would authorize the officer to hold defendant in custody. “ The law requires no man to do a vain thing,” is a familiar maxim, end certainly it would be in vain to require a party to surrender to an officer having no power to detain him.

The construction contended for by plaintiff, would enable a defendant to release his sureties by a surrender before execution, and then at once be released on habeas corpus, on the ground that he was illegally in custody. Such a result was never intended by the Legislature, and we are of opinion that a surrender within ten days after execution, is a sufficient compliance with the will of the Legislature. Judgment reversed^