Walker, J.,
after stating the ease: ¥e had the benefit of argument upon several questions which we deem it unnecessary to decide, as we are of the opinion that the judgment below was erroneous on another ground, and it would be premature at this time to go beyond the one upon which we rest our decision. The other points may never be again presented. The doctrine is well settled that when bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment. Whenever they choose to do so, they may seize him and deliver him up in their discharge, and if that cannot be done at once they may imprison him until it can be done. They may exercise their right in person or by agent; they may pursue him into another State; may arrest him on the Sabbath; and, if necessary, may break and enter his house for that purpose. The seizure is not made by virtue of new process. None is [634]*634needed. It bas long since been said that tbe bail bave tbeir principal on a? string wbicb they may pull whenever they please, and surrender him in tbeir discharge (6 Modern, 231) tbe right of bail in civil and criminal cases being, in many material respects, tbe same. Taylor v. Tainter, 83 U. S. (16 Wall.), 366; S. v. Lingerfelt, 109 N. C., 775; Sedberry v. Carver, 77 N. C., 319; Adrian v. Scanlin, ibid., 317. Tbe books bave clearly expressed this idea in regard to tbe relation of tbe principal to bis bail, and tbe authorities are pretty well agreed as to it. “A man’s bail are looked upon as bis jailers of bis own choosing, and the person bailed is, in tbe eye of tbe law, for many purposes esteemed to be as much in tbe prison of tbe court by wbicb be is bailed as if be were in tbe actual custody of tbe proper jailer.” 2 Hawk. P. C., 140. It is said in 1 Hale P. C., 325: “Yet tbe law is all one if be be under bail, for be is in custodia still, for tbe bail are, in law, bis keepers.” 'Wharton, in bis work on Criminal Pleading and Practice, says: “Tbe principal is supposed to be in tbe bail’s constant custody, and tbe latter being tbe former’s jailer, may at any time surrender him to tbe custody of the law.” Sec. 62, Am, Anno. Cases, 1912D (note.to S. v. Hyde, 124 Mo., 200), at p. 209. And this Court said by Shepherd, J., in S. v. Lingerfelt, supra, quoting, in part, from Nicholas v. Ingersoll, 7 Johns. (N. Y.), 145: “The power of taking and surrendering is not exercised under any judicial process, but results from tbe nature of tbe undertaking by the bail. Tbe bail-piece is not a process, nor anything in tbe nature of it, but is merely a record .or memorial of tbe delivery of tbe principal to bis bail on surety given. It cannot be questioned but that bail in tbe common pleas would bave a right to go into any other county in tbe State to take bis principal; this shows that tbe jurisdiction of tbe court in no way controls tbe authority of tbe bail, and as little can tbe jurisdiction of the State affect this right as between tbe bail and bis principal.” It was also decided that tbe bail might “depute to another to take and surrender tbeir principal.” In Parker v. Bidwell, 3 Conn., 84, it was held that “Bail, or a person deputed by him for that purpose, may take tbe principal in another State or wherever be may be and detain him or surrender him into tbe custody of tbe sheriff,” citing, also, S. v. Mahon, 1 Harr. (Del.), 368. It is also said that when tbe obligation of bail is assumed tbe surety becomes in law not only tbe jailer of bis principal, as bis custody is constructively a continuance of tbe original imprisonment, but, though be cannot confine him except where actually necessary, and temporarily, for tbe purpose of surrender, be is subrogated to all tbe other rights and means wbicb the State possesses to make bis control of him effective. 3 Am. and Eng. Enc. of Law (2 Ed.), 708, citing Reese v. U. S., 19 U. S., (9 Wall.), 541; U. S. v. Ryder, 110 U. S., 729; S. v. Lingerfelt, supra (S. c., 14 L. R. A., [635]*635605). Note to Carr v. Sutton, 70 W. Va., 417, in Am. Anno. Cases, 1913E. See, also, 5 Cyc., 126. Tbe right of bail to arrest bis principal bas been likened to that of a sheriff to rearrest an escaping prisoner. 3 Blackstone, 290; Taylor v. Tainter, supra, and cases cited. Tbe bail will be discharged only where the performance of the condition is made impossible by the act of God, the act of the obligee, or the act of the law. Where the principal dies before the day of the performance is a case of the first class; where the court before which the principal is bound to appear is abolished without qualification, or where the bail is released by the plaintiff, are cases of the second class; where the principal is confined in prison by judicial sentence during the period when his surrender is demandable belongs to the third class. Sedberry v. Carver, supra; People v. Bartlett, 3 Hill, 571; Taylor v. Tainter, supra; Co. Litt., 206; Bacon Abr., Title, “Conditions.” The reason why imprisonment of the principal under judicial sentence discharges the bail is that it renders a surrender of the principal by the latter impossible; and being the act of the law, it excuses the failure. Sedberry v. Carver, supra. We have so far been stating the rules of the common law concerning bail. They have been somewhat modified by statute in this and other jurisdictions, as we will presently show. The bail in this case contend that they are entitled to be discharged as such, by reason of the facts found by the judge, and the clear and indisputable inferences from them. This may or may not be so, but the time has not yet arrived for its decision. They assert that they have surrendered the defendant to the sheriff, to his deputy, and, also, through the coroner, to the person in charge of the jail (who was the jailer’s wife), and that if their attempted surrender, after their diligent and exhaustive efforts, was unavailing, that it, therefore, was impossible for them to surrender him, because he was in prison by order of the law or the act of the sheriff, and this impossibility of surrender exonerates them. They charge that the sheriff was in the unlawful custody of their principal, having no process for his arrest and no right to his control, and that, therefore, he acted in his own wrong in not holding and detaining the prisoner, at their request, or giving him up to them, so that they might make a more formal surrender of him, they having not only the general right to arrest without process and surrender him, but also statutory to do so, because they had before secured from the clerk of the court a certified copy of the undertaking, signed by their principal and themselves, and tendered it to him, and in answer to the sheriff’s reason for not accepting this paper and detaining the defendant, that he was interested as plaintiff in the action and disqualified to act, they say that he would not be serving process, but merely would, as keeper of the jail under the statute, be receiving into his cutody or detaining the defendant under [636]*636process beld by them, or under tbedr authority, as bis bail, to act without process, there being no one except the sheriff as keeper of the jail, or his deputy in actual charge thereof, to whom the surrender could be made. They contend that process-to the coroner was not required, as they had all the rights to arrest possessed by the sheriff, or by the coroner, or by any other officer having authority to serve process. They say, therefore, that as the sheriff, who is plaintiff, acted wrongfully in not detaining their principal, they are exonerated, and in this connection they rely upon the rule stated by some of the authorities, and especially in Carr v. Sutton, 70 W. Va., 417, “That where a creditor does any act injurious to the surety, or inconsistent with his rights, or if he omits to do any act when required by the surety, the latter will be discharged, and that he may set up such conduct as a defense to any suit brought against him, if not at law, at all events in equity,” citing 1 Story Eq. Jur., sec. 325; Leonard v. County Court, 25 W. Va., 45; 13 Dig. Va. and W. Va. Reports, 22-24. See, also, Taylor v. Tainter, supra.
We have stated these several contentions, not for the purpose of passing upon them, but as preliminary to a proper consideration of the real and essential question in this appeal, and as conducive to a better understanding of it.
Our statute provides that when an action is brought for the recovery of a debt contracted by fraud, and the jury find the fact of fraud, the plaintiff as creditor, may take judgment for his debt against the defendant, as his debtor, and execution shall then issue aginst the latter’s property. If it is returned “Nulla bona” (no goods or chattels, etc.), and the defendant has given bail in the action, and is at large, an execution may issue against his person. If this writ is returned “Non est inventus” (not to be found, etc.), the plaintiff may then move, on ten days notice, for judgment against the bail. The latter may then answer and set up any defense open to them, such as death of the principal, a legal surrender of him, release or discharge of him or them, or any other matter which if found to exist, will entitle them to an exoneration. The provisions of the statute applicable in such a case are as follows: .
Sec. 735. A defendant arrested may at any time before judgment apply on motion to vacate the order of arrest or to reduce the amount of bail. And he may deny upon oath the facts alleged in' the affidavit of the plaintiff on which the order of arrest was granted, and demand that the issue so raised by the plaintiff’s affidavit and the defendant’s denial be submitted to the jury and tried in the same manner as other issues are tried by a jury; and if the issues are found by the jury in favor of the defendant, judgment shall be rendered discharging the [637]*637defendant from arrest and vacating tbe order of arrest, and tbe defendant shall recover of tbe plaintiff all costs of tbe proceeings in sucb arrest as be shall have incurred in defending tbe said action.
Sec. 738. Tbe defendant may give bail by causing a written undertaking, payable to tbe plaintiff, to be executed by sufficient surety to the effect that tbe defendant shall at all times render himself amenable to tbe process of tbe court during tbe pendency of tbe action, and to sucb as may be issued to enforce the judgment therein. . . .
Sec. 751. Tbe bail may be exonerated, either by tbe death of tbe defendant or bis imprisonment in a State Prison, or by bis legal discharge from tbe obligation to render himself amenable to tbe process, or by bis surrender to tbe sheriff of tbe county where be was arrested, in execution thereof, at any time before final judgment against tbe bail.
Sec. 752. At any time before final judgment against them, tbe bail may surrender tbe defendant in their exoneration, or be may surrender himself to tbe sheriff of tbe county where be was arrested, in tbe following manner:
1. A certified copy of tbe undertaking of tbe bail shall be delivered to the sheriff, who shall detain tbe defendant in bis custody thereon, as upon an order of arrest, and shall, by a certificate in writing, acknowledge tbe surrender.
Sec. 753. For tbe purpose of surrendering tbe defendant, tbe bail, at any time, or place, before they are finally charged, may themselves arrest him, or by a written authority, indorsed on a certified copy of tbe undertaking, may empower any person over 21 years of age to. do so.
Sec. 754. In case of failure to comply with tbe undertaking, tbe bail may be proceeded against by motion in tbe cause on ten days notice to such bail.
It will be seen from these provisions that judgment should not be given against tbe bail merely upon tbe verdict finding tbe existence of tbe debt and that it was contracted by fraud, nor until tbe property of tbe debtor has been exhausted by execution .and process has issued against bis person and returned “Not found,” and notice thereof of ten days has been given to tbe bail, and they have a day in court to answer tbe motion for judgment against them. This is not only tbe law, but, in one form or another, has substantially been tbe law for cenutries. Formerly, after a return of nulla bona and non est inventus, tbe bail was proceeded against, at one time by action, and at others by scire facias. The remedy by action was revived by C. C. P., see. 160, and took tbe place of tbe former scire facias; tbe remedy at present being by motion. Revisal, see. 754. It is a mistaken notion that in letting a defendant or a prisoner to bail, tbe object is not to secure bis presence [638]*638to answer tbe process of tbe court, but to obtain tbe money that may be recovered upon a defaulted bond or recognizance. It is true tbat if be defaults, be may finally be taken and imprisoned until, in a civil action, be pays tbe debt or complies with any other judgment or order of tbe court, or is otherwise discharged by tbe law, as, for instance, by taking tbe insolvent debtor’s oath in proper cases. Tbe primary and main object of tbe law is to reach bis person and to keep him within tbe jurisdiction and tbe call of tbe court upon process issued for him. If, when tbe sheriff returns upon an execution against bis property, “Nothing to be found,” or bis property is exhausted, and .an execution is then issued against bis person, be is arrested, or taken in custody, tbe sureties are discharged, because be has rendered himself “amenable to tbe process of tbe court.” Tbe bail must see to it tbat be is kept within the jurisdiction of tbe court, where be can be taken when be is wanted, tbe word “amenable” as used in tbe statute meaning “answerable” or “responsive.” This is tbe condition of their bond, as will be clearly seen by reading it. “When a recognizance is entered into for tbe appearance of a defendant, . . . said defendant, in legal contemplation, is delivered into tbe 'friendly custody’ of bis sureties, instead of being committed to jail. They have control of bis person, .and are bound at their peril to keep him within tbe jurisdiction of tbe court, and to have bis person ready to surrender when demanded. If they become apprehensive for their own safety, they can arrest and commit him to prison at any time.” Devine v. State, 37 Snead, 623. But it is not necessary to further discuss this question, as our cases have settled tbe construction of tbe statute. Tbe Court, by Justice Bynum, asked and answered tbe questions as to tbe sureties’ liability, in Sedberry v. Carver, supra, where be said: “What constitutes a breach of this undertaking? Certainly there is no breach until tbe plaintiff first seeks tbe body of tbe defendant for tbe satisfaction of bis judgment. "When execution was issued against tbe person of Jackson, it was, and not before, tbe duty of tbe defendant to surrender himself, or of 'the bail to surrender him to this demand by legal process. When tbat execution issued, Jackson was out of prison and at large, and in legal contemplation was in tbe custody of bis bail. Tbe failure to surrender him then was a breach of tbe undertaking of tbe bail. This breach was a continuous one until tbe bail bad been charged by a final judgment against him on tbe undertaking. From tbe issuing of tbe execution against tbe body until final judgment against tbe bail there was a continuous demand for tbe body of tbe principal, and an increasing duty upon tbe bail at any and all times during tbat period to surrender bis principal in bis own discharge.” If there has been a prior surrender by tbe bail of their principal, or if there be any other fact which exonerates them, they may plead it in defense when they arc [639]*639moved against, after notice, under tbe statute. It was beld in Patton v. Gash, 99 N. C., 280 : “After judgment in an .action in which, the defendant might hav-e been arrested, and in which an order of arrest was duly served, the plaintiff is entitled to a summary judgment against the sureties upon the defendant’s undertaking — it appearing that execution has been issued against his property and person without effect.” (Italics ours.) And Justice Shepherd said in S. v. Lingerfelt, supra: “It is urged, however, that the recognizance having been forfeited by the default of the principal to appear in the Tennessee court, the right of bail to take his principal was extinguished. It will be observed that the judgment was only conditional, and that a scire facias was ordered to be issued. It has never been understood in this State, nor do we so understand the common law, that such a judgment has effect contended for. The right of the bail to take his principal in a criminal case before final judgment, and to produce him in co.urt in mitigation of the penalty, is generally recognized in North • Carolina, and we have been referred to no authority where the contrary has been held. It is entirely clear that the payment by the bail in criminal cases does not discharge the principal from his obligation to appear in court, and it is intimated, even in that case, that the Government, by way of subrogation, will, lend the sureties its aid in every proper way by process and without process to seize the person of the principal and compel his appearance.’ However this may be, we are clearly of the opinion that a mere conditional judgment, like the one before us, does not deprive the sureties of the remedies which previously existed in their favor.” The recent cases cf Howie v. Spittle, 156 N. C., 180, and Turlington v. Aman, 163 N. C., 555, put the same construction on the statute. As another reason why judgment should not go against the bail, in the first instance, as was done in this case, is the right of the defendant to surrender himself in exoneration of his bail, when called upon by the mandate of process to do so. Revisal, sec. 751; Dick v. Stoker, 12 N. C., 91; S. v. Schenck. 138 N. C., 560, 3 R. C. L., 49, sec. 55. This was so under the old law where bail was given upon a ca. sa. Judge Battle said in Mears v. Speight, 49 N. C., 420: “As he appeared, no judgment could be rendered against him and his surety in the bond, because the surety was responsible only for his appearance,” citing Watson v. Willis, 24 N. C., 17. It was there held that no judgment can be entered upon a ca. sa. bond if the debtor appears, although his surety does not surrender him. It may be that the defendant will be dead or in prison under sentence, or that he will surender himself to the sheriff. In either of these events his bail will be discharged, and in the last case he would have answered-the process and, of course, have kept himself amenable thereto, and there will be no need of deciding as to whether they have been exonerated. [640]*640Tbe surrender mentioned in Revisal, sec. 751, is not confined to one made by the bail, but extends also to the voluntary surrender by tho principal of himself, as the above authorities show. In Dick v. Stoker, 12 N. C., 91, Judge Henderson said that “The principal himself may, without the agency or knowledge of his bail, surrender himself, and the sheriff is as much bound to receive him as if surrendered by the bail.”
¥e have referred, in what is said above, to cases where no process has been or could issue for the defendant’s apprehension before the final body execution provided for by the statute. There was no reason for issuing process against him in this ease before execution has been issued against' his person, after judgment for the debt.
We have treated the judgment in this case as virtually one against the sureties, as it provides that in case execution against the defendant’s property is returned unsatisfied an execution shall issue against his person, and in case the latter is returned “unsatisfied,” evdently meaning “not to be found,” that execution shall issue against the bail, without providing for .any motion on notice, as required by Revisal, sec. 754. The statute clearly contemplates that there shall be judgment against bail only on motion after legal notice. The court must adjudge, after hearing on notice, that the facts essential to the liability of the bail exist before subjecting them to a judgment .and execution. Formerly, as we have shown, this was done first by scire facias, and then by a civil action, in which, of course, judgment had to be rendered before an execution could issue, and the bail might contest the plaintiff’s right to a recovery against them by setting up valid defenses. The procedure now is mere summary, but in other respects is analogous to the earlier remedy. In Turlington v. Aman, supra, we disapproved a judgment such as was rendered in this case, and suggested a strict and regular compliance with the statute. Persons who become bail are favored by the law, and the powers given the bail over his principal are given to enable him more easily to perform the onerous duties and obligations which he has voluntarily assumed. He will not be charged unless in exact accordance with his undertaking. His lot is sometimes a hard one, and the law, though it will favor the creditor, to the extent that it is necessary to enforce his legal rights, will ameliorate the condition of the bail when to do so will not conflict therewith. Both are to be considered, and, after all is said, it results in this, that the provisions of the statute, so far as applicable, must be followed.
It is singular that neither party, the sheriff (who was also plaintiff) nor the bail, notified the Governor that the prisoner, confined in the jail and awaiting the issue of an extradition warrant for him, upon the demand of the Governor of South Carolina, was also in the custody of his bail, who had a certified copy of the undertaking (known elsewhere [641]*641as a bail-piece), and were entitled to be considered before be issued bis warrant for bis extradition, or tbe same was executed if already issued. It is beld by a court of bigb authority in sucb matters that be (tbe Governor) would bave tbe moral right to bold tbe prisoner here until be paid tbe debt, and that no power exists to compel him to do otherwise. Taylor v. Tainter, 83 U. S. (16 Wall.), 366; Beavers v. Hanbert, 198 U. S., 77. In other jurisdictions it is beld that it is bis duty to refuse extradition until tbe bail are relieved. In re Troutman, 24 N. J. L., 634; Matter of Briscoe, 51 Hon. Pr. (N. Y.), 422, and tbe case of In re Harriott, 18 R. I., 12, would also .apply, as here tbe warrant of extradition bad not been served when tbe sheriff was tendered a certified copy of tbe undertaking by tbe bail. One ease bolds that tbe fact of tbe accused being in custody on a civil charge is no reason for a refusal to surrender him to tbe demanding State. In re Rosenblat, 51 Cal., 285. If we bad to choose between these conflicting views, we would, perhaps, adopt tbe one indorsed by tbe decision of tbe highest Federal court, and especially as it is so well supported by the New Jersey, New York, and Ehode Island cases. When tbe motion to enter tbe exoneration was first made, tbe accused was still in jail, and tbe presiding judge, no doubt, would bave ordered tbe sheriff, as jailer, to detain tbe prisoner subject to tbe action of tbe Governor, so that if not extradited be could be beld as upon a surrender of bis bail. In a case somewhat analogous, Justice Bynum said: “(1) That the statute, O. C. P., sec. 161, has no application to imprisonment of any duration whatever in another case under civil process, for, as was said in Granberry y. Pool, tbe bail may pay tbe debt and surrender bis principal; (2) It has no application where tbe term of imprisonment under criminal process has expired before final judgment .against tbe bail, for in sucb case tbe principal can be delivered; and (3) It would seem that no temporary imprisonment within tbe State will exonerate the bail, for in sucb case tbe court may, upon tbe motion of tbe plaintiff or bail, order tbe principal to be retained a prisoner until the debt is paid; and tbe service of tbe order on tbe jailer shall authorize him to detain tbe debtor; and this shall be deemed a surrender of tbe principal in discharge of tbe bail.” Sedberry v. Carver, supra. When tbe sheriff refused, either legally or illegally, to detain tbe principal, already in bis custody, it would seem, under tbe view just stated, that tbe judge could bave ordered tbe principal to be continued in bis custody, .as jailer, as upon a surrender by bis bail, especially as tbe sheriff then beld no process againt tbe principal. ■But if this right existed, it has been lost, as tbe accused has been extradited. We are not now passing upon tbe validity of tbe sheriff’s excuse. All these matters may be set up when a motion is made to subject tbe [642]*642bail, if it becomes necessary to do so, that is, if the bail are not sooner discharged by the death or voluntary surrender of their principal, or release in some other way.
It does not appear what became of the prisoner after his extradition. Was he convicted and sentenced in South Carolina, and, if so, for what time; or was he released, and has he remained in the other State or returned to this State? If the case comes back to us, answers will doubtless be made to these questions, so that we may decide the difficult proposition upon a full disclosure of all the facts. It is not clearly found whether the deputy sheriff was induced by what occurred between him and the attorney to sign the paper acknowledging the surrender of the principal. The evidence is stated, but not the ultimate fact to be deduced therefrom.
The judgment will be set aside as to the bail and retained as to the principal defendant. Let execution be issued to the proper officer, and other proceedings be had thereafter according to the statute.
Error.