WAKEFIELD vs. M'KINNELL, 9 La. 449

Mathews, J., delivered the opinion of the court. This is an appeal from a judgment of the court below, pronounced in relation to a rule taken on the defendant, to show cause why judgment should not be entered against him as bail of a certain ffm. Wilkins. The judgment was in favor of the defendant, from which the plaintiff appealed. The surety hi sm-mid°rd ’his Principal in exe-oution, at any time before the hon'd ÜareS made juIgmentaSmst himself. It is shown by the facts of the case, that Wilkins,' after giving bail, left the state and died at Louisville, Kentucky, in the month of September, 1835.

Judgment was obtained against the principal, and two writs of execution were issued and returned before .bis death, viz : a fieri facias and a ca. sa.; the returns to, which show that neither his property or person could be found. The counsel for the plaintiff relies principally on an alleged forfeiture of one of the conditions of the bail bond, for a recovery against the bail.; and that is, the departure of the defendant in the original suit from the state, without leave of the court.

The conditions prescribed by the "Code of Practice to be annexed to a bail bond, and which are to determine the obligations of the parties to it, appear to be two. 1st. That the defendant shall not depart from the state without leave of the court. 2d. That he shall appear when judgment shall have been rendered, &c. The bail is made responsible, as it would appeal-, by the act of departing from the state without leave, or by the negligence of his principal in not appearing after judgment rendered against him. These conditions are found in articles 219 and 222. .

It must be confessed that they are calculated to produce confusion in this part of our civil procedure, as the first seems to apply to arrests for debts generally, and the last to arrests for those not yet due. In the present case, neither party has favored us with a copy of the bond; but we presume it contains the condition prescribed by the code, in ordinary cases of suits for debts due, and no other.

Although no other be expressed in the bond by which the bail is rendered responsible, and the means pointed out by which he may be discharged; yet there is another clearly implied by the rules in relation to bail, found 4/1 , 7 in the articles 230 and 231; according to which the surety may release himself from all obligations, by surrendering the person of his principal in execution, at any time before they 'become absolute, by a judgment against him ; viewed in this light the bail authorised by our jurisprudence is very similar to that known to the common law, by the appellation of bail above.

If the principal in abail bond dies before judgment is rendered against the surety, so as to put it out of the power of the latter to surrender him in execution, the bail will be discharged. No one can doubt of the complete exoneration of a surety in a bail bond, from all his obligations, by the surrender of his principal, in pursuance of the articles of the Code of Practice last cited; notwithstanding the latter may ad interim have been absent from the state.

The evidence shows that the death of the defendant in the original suit, put it out of his power thus to exonerate himself; an occurrence which forms a legal excuse for both the principal and his surety, in not complying with the conditions imposed by the contract. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.