STATE vs. PRENDERGAST, 11 La. 68

Bullard, J., delivered the opinion of the court. The defendant is appellant from a judgment pronounced against him as surety for one Crain,' to appear and answer to a criminal charge, preferred against him by indictment. His counsel contends that the proceeding was irregular, and not in conformity to the provisions of the act of 1835, page 219. We have carefully examined the evidence, and it appears that the final judgment from which the present appeal has been taken, was signed on the 22d June, 1836.

The minutes of the court show, that on the 16th of the same month pending the motion against the bail, the district attorney, with the leave of court, entered a nolle yyrosequi in the case of the State vs. Crain, the principal in the bond. In the case of the State vs.

Hay et al., this court held, that when the principal is tried and acquitted before judgment for the recovery of the forfeited penalty, on failure to appear at the first, term, the bail is discharged ; and in the case against Dunbar et al., we held that the appearance of the accused before judgment against the bail, and the entering of a nolle prosequi, exonerated the bail. 7 Louisiana Reports, 78, and 10 Louisiana Reports, 99.

So, if while a motion, is pending in court to obtain judgment against the bail on his recognizance, the accused not hav-ingappeared,the district attorney enters a nolle Írosegui, as to im, the bail is thereby exonerated. After the entering of the' nolle prosequi, the bail could not obtain the assistance of the court to arrest the traverser, because there no longer existed any legal ground for his arrest; it is, in relation to the bail, as if the principal had been tried and acquitted.

His failing, to appear either at the first or second term, did not amount to an absolute forfeiture of the penalty, and the defendant had still a right to exonerate himself, by producing the body of the accused, at any time before final judgment on the recognizance. This he was prevented from doing, by the State desisting from the prosecution. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and ours is for.the defendant.