State v. Cone

32 Ga. 663

Opinion

By the Court.

JeStkins, J.,

delivering the opinion.

The sole question presented in this record is, does the death of the principal in a recognizance to appear and answer a criminal proseeutionj occurring after the forfeiture of the recognizance, but before judgment thereon, exonerate the security ?

It is conceded, that if the security, bring in his principal alive, and surrender him before judgment, he is exonerated. Then, suppose he bring in the dead body of his principal, at like time, shall he be held liable because life is extinct ? He undertook only to bring in the body—he did not insure the life of his principal.

He undertook to be the jailor of the accused—to keep him safely so long as he shall live, is in contemplation of law, within his power; but to keep him alive for a given time, is what the security cannot certainly do. If he live the appointed time, it is not the security who hath preserved his life. If he die before the time expires, it is not the security who hath caused his death. It is the act of Him with whom are the issues of life and death. “ Actus Dei, nimini fact injuriam.” We hold, as did the Court below, that the plea to the scire facias is good.

Let the judgment be affirmed.