No. 18.

#### Green L. Dennard & John Alexander, plaintiffs in error *vs.*The State of Georgia, defendant.

[1.] The condition of a recognisance or bond to appear and answer to a criminal charge, at a given term of the court, is not fulfilled by being present at that term. The condition of such a bond is not fulfilled by appearing and answering to the charge by pleading to it. But the accused must be and appear at the first term and continue to appear until he is permitted to go by leave of the court had; or until he is acquitted or otherwise legally discharged; or if convicted, until sentence is passed j in order to the fulfilment of the obligations of the bond and the release of the securities.

[2.J A recognisance or obligation to appear and answer to a criminal charge, attested only by one not being a magistrate, not a recognisance technically, but good as a bond.

Scire Facias upon forfeited recognisance. From Baker Superior Court. Tried before Judge Warren. November Term, 1S46.

For the questions made and determined, see the opinion of the Supreme Court.

Strozier & Sturgis, for the plaintiff in error,

cited 1 *Chit. Crim. Law,*106; 1 *Bacon Abr. (Bail in criminal cases)*361; *2 Hawkins Pl. Cr.*177, 178; *Miller*vs. *Stewart,*9 *Wheat. R.*180; 4 *Taunt. R.*593; *Theobald on Prin. and Surety,*44, s. 83; 3 *Tom. L. Dic.*297; *Schley’s Dig.*138, 140, 211.

McCay representing Patterson, Solicitor General, for the State.

*By the Court*

Nisbet, J.

delivering the opinion.

The proceeding in the Court below in this case, was a *scire facias,*to charge the plaintiffs in error as security for one Mclver, on his recognisance to appear and answer to a charge of playing at Faro. The record discloses that said Mclver, together with one Hatsfield, and several other persons, were jointly indicted under our statute for playing at Faro—that Hatsfield and Mclver were alone arraigned, and pleaded not guilty; and that the jury upon the trial returned a verdict of not guilty as to Hatsfield, and as to Mclver, returned the following verdict, to wit: “We the jury find the defendant guilty.” Upon the return of the *scire facias,*the Solicitor General moved to enter up judgment against the defendants, and upon the trial, tendered in evidence the bill of indictment *138with the entry thereon of the verdicts of the jury. The defendants objected to its going, because it afforded no evidence of a verdict against Mclver—the verdict is, “we the jury find the defendant guilty,” and said they, “this verdict applies to all the defendants, except Hatsfield, as much as to Mclver. There is no evidence of the trial and conviction of Mclver.” The Court overruled the objection and admitted the evidence, and this is assigned as error. We do not think it is. It was not necessary in order to show a forfeiture of the recognisance, to prove a conviction at all, but if it was, then we think the bill of indictment and the verdicts and other entries thereon, show that Mclver was tried and found guilty. The bill shows that Hatsfield and Mclver alone were put Upon trial; that Hatsfield was acquitted by name, and therefore the other verdict could apply to no other person but Mclver. “Id *certum est, quod reddi certum potest*

[1.] Again—it was claimed in the Court below, that there was no forfeiture of the recognisance, and therefore there ought to be no judgment against the bail. “ The bond or recognisance, said the defendants, is conditioned for the appearance of their principal at the Superior Court of Baker County, on the first Monday in December, eighteen hundred and forty-five; he did appear on that day and having so appeared, all the obligations of the bond were fulfilled and the securities discharged.” The Court ruled differently, and *that*is assigned as error. We do not think it is. It is true that a part of the condition of the bond is that the principal, Mclver, “shall personally be and appear before the Superior Court, to be held in and for said County (of Baker) on the first Monday in December next, then and there to answer to the State aforesaid, of and concerning the playing and betting at Faro, &c.” But this is not all the condition of the obligation— the condition in the bond proceeds “ *and shall not depart thence without leave of said Court?’*We hold that this bond binds the principal not only to be and appear at the term to which it is returnable, but to continue to appear until acquitted, or in some legal way discharged, or if tided and found guilty, until the sentence of the Court is passed upon him, unless he is permitted to depart sooner by *leave of the Court*had. And the evidence of this leave being had, is an *exoneretur*or other order of discharge entered upon the minutes. The bond is intended to insure the appearance of the accused *to answer to the court of <w¡,d concerning the offence charged?;*to answer not only to the charge but also to the judgment. Of course it is *139¡competent for the securities at any time to discharge themselvqs by a surrender of their principal in vacation to the Sheriff, or in term to the court. The question here is, was there a surrender ? The record exhibits no evidence of it. *Prince Dig.*470, 471; 1 *Chitty Crim, Law,*86; *Bacon Ab. Bail L.; 1 Taunton*23; 1 *Saunders Plea. and Evid.*195, 196.

It appears further from this record, that Mclver appeared at June Term, 1846, and answered to the charge, by pleading thereto and standing his trial, and that being found guilty, he departed thence *without leave of the*court—after the verdict was rendered but before sentence was passed. This appearance and answer was claimed in the Court below to have fulfilled the obligations of the bond and discharged the security. The Judge presiding thought differently and so ruled, and *that ruling*is assigned for error. We do. not think it is, and our reasons for so thinking axe given in the preceding paragraphs of this opinion. The sureties must have their principal to answer to the sentence of the Court.

It was further insisted before the Court below, that the paper [2.] purporting to be a recognisance, upon which the names of the defendants appeared as securities, is not a recognisance, because not taken by any person authorised bylaw to take a recognisance or admit to bail in criminal cases, and that therefore the paper should not be reacf in evidence to charge the defendants. The Court ruled *in*the evidence, and *that*is assigned as error. We do not think it is. Technically this is not a recognisance, because not an acknowledgment of a debt of record; nor before a judicial officer. It is signed and sealed and acknowledged before George W. Collier, not being a magistrate. The bond is taken under the Common and Statute law of England, which entitles a party arrested to give bond with security for appearance. It is in fact a bail bond; a contract between the securities and the State, and as such good. *2 Wheat. Selw.*794, *note; 1 P. Williams,*334; 2 *Vernon,*750; 2 *Nott & McCord,*425, 426.

Let the judgment below be affirmed.