#### State vs. Newton.

Subety, *in recognizance to appear, cannot be compelled to renew it.*— Pleading: *consistent defenses.*

1. The recognizance required by see. 4, oh. 37, K. S., cannot be renewed *as to the surety*by order of court without his consent.

2. In an action on such a recognizance, an answer by the surety that the ■ accused, after judgment, was permitted by the state to depart the court, etc., is not inconsistent with a denial that the recognizance was renewed as to the surety at the next term after it was entered into, the cause having then been continued.

APPEAL from the Circuit Court for *Fond du Lac*County. ■

*F. 8. Bragg,*for appellant.

*Blair §■ Coleman,*for the state,

as *to*the renewal of the recognizance, cited sec. 5, ch. 37, R. S. As to the effect of the admission on the face of the answer, they cited Gould’s PL, 152; Chitty’s PI. (8th ed.), 585; *Saltusv. Genin,*3Bosw., *537250; 7 Abb., 143; *Andrews v.*CHadboume, 19 Barb., 147; *Crosbie v. Leary,*6 Bosw., 312.

Dixon, C. J.

Action upon a recognizance in a proceeding in bastardy, entered into before a justice of the peace by the appellant, as surety, for the appearance of the accused at the next term of the circuit court, as provided in sec. 4, chap. 37, R. S. The cause was not tried at the next term of the circuit court, and not until two terms had intervened, when the accused was found guilty, and adjudged to be the father of the child, and to stand chargeable .with the maintenance thereof, etc., as .provided by sec. 6. Breach, that the accused failed to appear and answer to the complaint -at that term, and to abide the order of the court thereon. The complaint likewise avers, that the accused appeared at the next term after the recognizance was entered into, and, sufficient reason having been shown therefor, the cause was continued until the next succeeding term; and that thereupon the court ordered the renewal of the recognizance, and it was renewed as prescribed by sec. 5. It furthermore avers that at the second term of the^court, the cause was again continued for sufficient reason until the next term, and a renewal of the recognizance ordered, and the same was renewed. Answer: 1st. A denial of the entire complaint except the making of the recognizance, and averment that the accused appeared at the time and place therein specified. 2nd. Averring performance of the condition as specified and required in the recognizance. 3d. Alleging the appearance of the accused at the term when the cause was tried, his conviction and receiving judgment, and that he was voluntarily permitted by the plaintiff to depart the court without the fault or neglect of the appellant, his surety. On the trial, the plaintiff gave no evidence proving or tending to prove a renewal of the recognizance at the *538next or any succeeding term of tbe circuit court after tbe recognizance was entered into; and tbe judge instructed tbe jury tbat tbe answer of tbe appellant, alleging tbat tbe recognizance was satisfied by tbe accused being permitted by tbe state to go at lai-ge after judgment against bim, was an admission on tbe part of tbe appellant tbat tbe recognizance was properly renewed and in force against bim at tbe time tbe accused was tried,* and tbat it was not necessary for tbe state to show tbat any order was made by tbe court at tbe time tbe action was first continued, for tbe renewal of tbe recognizance against tbe surety.

Tbis instruction was erroneous. Tbe denial tbat tbe recognizance was renewed, and tbe averment tbat tbe accused was voluntarily permitted by tbe state to go at large after judgment, are not inconsistent grounds of defense. Tbe want of renewal and tbe permission to go at large are facts not necessarily connected witb or dependent upon eacb other. Tbe recognizance may not bave been renewed so as to bind the surety, and yet tbe state may bave permitted tbe accused to. depart tbe court as alleged in tbe answer. It may bave been renewed as to tbe accused though not as to tbe surety, who could not be bound without bis assent.

*By the Court.*— Judgment reversed, and .a new trial awarded. ■ .

*

 The answer as to this point is, that the accused appeared personally at said term, “ and answered the charge or complaint *in the said supposed recognizance*recited,” etc., etc. — Rep.