Bullard, J.,
dissenting. — At first, my opinion was that the judgment in this case ought to be affirmed, but upon more , .. , , mature reflection and examination of the authorities, I have not been able to bring my mind to that conclusion. I will briefly state the grounds of my opinion.
I do not contest the general principle, that a party entitled to a summary as well as an ordinary remedy, may resort to either at his option. But in no case, in my opinion, ought . . . , , . , , ,11 , . , fills option to be permitted, when the law has pointed out a specific remedy, where a resort to a different mode of proceeding would deprive the defendant of any legal advantage, and render his condition more onerous. I he present is an action of debt upon a penal bond. If the state has a right to-maintain an ordinary action upon it, without observing the forms . 1 ° required by (he act of 1835, if may be done at any lime, at least within ten years, without any notice to the bail; even against the heirs of the bail, after the transaction has been ° ’ forgotten, and no trace is to be found of it except the bond, and the minutes of the court, showing that the body of the accused was not. produced, on proclamation being made. [524]*524The statute requires previous notice to be given, and the bail may, at any lime before the judgment nisi is made final, produce the body of the accused, and exonerate himself. But. if this mode of proceeding may be pursued, and the 1 , ■ . ' . . , . surety changes his domicil, the suit may be instituted m a different court, a court which never had cognizance of the principal matter. Suit might even be brought in another state, if he removes, and he would necessarily lose the advantage of surrendering the principal. Such a court would have no power to enter an exoneratur. Again, I take it for granted .that no action of debt can be maintained, unless the plaintiff shows that he has absolutely a right to recover; that his right is not suspended by any condition, and that the plaintiff had done every thing- required by the law of the contract., to entitle him to recover.
The act of 1835, makes it the duty of the district attorney, on the second day of each regular term of the court, to call all persons who may have entered into any bond, recognizance, or obligation, for their appearance or their attendance, and also to call on the sureties or securities, to produce the person of such defendant, instanier, etc., and upon failure to comply therewith, on motion of the district attorney, the court shall enter up judgment nisi. It is then made the ■duty of the clerk to issue copies of this judgment, to be served on the parties, and on the second day of the next succeeding term, or any day after, the judgment maybe made final, on proof being made of the notice of the judgment nisi. Acts of 1835, 219. In the present case, the traverser did appear when called on the second day of the term. He was produced by his bail. The district attorney knew it, took notice that he was in court, and he was arraigned and tried at least on two of the indictments. At that time there was no default on the part of the bail. If his mere appearance did not discharge the bail, and they were still bound for his appearance from day to day, and even at the next term, as has been contended by the state, and as may be admitted for the purpose of this argument, then there was an existing recognizance for his appearance at the next term of the [525]*525court, and the bail could be put in default, the recognizance declared forfeited, and even a judgment nisi entered, only on the second day of that term. According to the argument, therefore, of the district attorney himself, it, was only on the second day of that term that he could call the sureties and put them in default. Nothing, in my opinion, authorized the district attorney to enter a judgment nisi on any other day of the term, and the notice of .such judgment cannot be dispensed with, according to the law existing at that time. But it is said the statute was entirely nugatory and ineffectual. That is no consideration for this court, which has no powrer to patch up defective legislation.
It IS llOt SO clear that when the body of the accused is produced by the bail, and notice given to the district attornej7, the bail is not exonerated without any formal exoneratur being entered. According to the English authorities, such would be the effect of a surrender by the bail.
But is it so clear that by producing the body of the traverser, and giving notice of the fact to the district attorney, the bail was not, in fact, exonerated, without any formal exoneratur being entered 1 According to the English authorities, although the exoneratur. be, by neglect of the officer, not actually entered, yet, if thé plaintiff be apprized of the surrender, scire facias against the bail shall be set aside, though the plaintiff’s attorney knew not of the surrender. Comyn’s Digest, verbo Bail, Q. 2. In this case, the district attorney was apprised of the fact that the defendant had been produced in court, in compliance with the recognizance, and he proceeded to conviction without ordering the defendant into custody, even after verdict against him. I have no doubt the bail thought himself discharged, but even if he was not, he could not, in my opinion, be put in default until the second day of the next term, for it is clear the court could not pronounce the judgment nisi on any other day of the term. In my opinion, therefore, the state is not entitled to judgment, because the bond was not forfeited according to the' law existing at that time, and forms were not pursued, which were required by law to entitle the state even to a conditional judgment against the bail. I have not the least doubt but that the Court of Exchequer in England, under the strong equitable circumstances of this case would relieve the bail. Without assuming any such .equitable powers, I think that at least we ought to hold the [526]*526state to a strict compliance with its own laws, 'more especially in cases where the primary object of bail is to secure the personal appearance of persons accused of criminal offences,
But it is contended that the attorney general is empowered to prosecute in all cases in which the state is a party; and, consequently, has a right to pursue any form which the law authorizes in ordinary cases. I deny that a general authority to sue authorizes him to pursue any other remedy than that which the law makes it his duty to pursue in particular cases. This general power is conferred by the act of 1817, section 3, which declares merely that the attorney general, and the several prosecuting attorneys, shall be bound to prosecute or sue in all cases, either civil or criminal, where the state shall be a party. 1 Moreau’s Digest, 27.
The act of 1818, permitted judgment to be given, on motion, against bail, after ten days notice of such intended motion.
The act of 1827, has also been relied on as confirming this power. That statute makes it the duty of the attorney general, and district attorneys, within their respective districts, to pursue, on behalf of the state, such legal measures as they may deem expedient for the recovery of all claims of the state, the recovery of which is not otherwise provided for; and they are allowed a commission of five per cent, upon the amount recovered. 2 Moreau, 416.
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Bullard, J.,
dissenting. — At first, my opinion was that the judgment in this case ought to be affirmed, but upon more , .. , , mature reflection and examination of the authorities, I have not been able to bring my mind to that conclusion. I will briefly state the grounds of my opinion.
I do not contest the general principle, that a party entitled to a summary as well as an ordinary remedy, may resort to either at his option. But in no case, in my opinion, ought . . . , , . , , ,11 , . , fills option to be permitted, when the law has pointed out a specific remedy, where a resort to a different mode of proceeding would deprive the defendant of any legal advantage, and render his condition more onerous. I he present is an action of debt upon a penal bond. If the state has a right to-maintain an ordinary action upon it, without observing the forms . 1 ° required by (he act of 1835, if may be done at any lime, at least within ten years, without any notice to the bail; even against the heirs of the bail, after the transaction has been ° ’ forgotten, and no trace is to be found of it except the bond, and the minutes of the court, showing that the body of the accused was not. produced, on proclamation being made. [524]*524The statute requires previous notice to be given, and the bail may, at any lime before the judgment nisi is made final, produce the body of the accused, and exonerate himself. But. if this mode of proceeding may be pursued, and the 1 , ■ . ' . . , . surety changes his domicil, the suit may be instituted m a different court, a court which never had cognizance of the principal matter. Suit might even be brought in another state, if he removes, and he would necessarily lose the advantage of surrendering the principal. Such a court would have no power to enter an exoneratur. Again, I take it for granted .that no action of debt can be maintained, unless the plaintiff shows that he has absolutely a right to recover; that his right is not suspended by any condition, and that the plaintiff had done every thing- required by the law of the contract., to entitle him to recover.
The act of 1835, makes it the duty of the district attorney, on the second day of each regular term of the court, to call all persons who may have entered into any bond, recognizance, or obligation, for their appearance or their attendance, and also to call on the sureties or securities, to produce the person of such defendant, instanier, etc., and upon failure to comply therewith, on motion of the district attorney, the court shall enter up judgment nisi. It is then made the ■duty of the clerk to issue copies of this judgment, to be served on the parties, and on the second day of the next succeeding term, or any day after, the judgment maybe made final, on proof being made of the notice of the judgment nisi. Acts of 1835, 219. In the present case, the traverser did appear when called on the second day of the term. He was produced by his bail. The district attorney knew it, took notice that he was in court, and he was arraigned and tried at least on two of the indictments. At that time there was no default on the part of the bail. If his mere appearance did not discharge the bail, and they were still bound for his appearance from day to day, and even at the next term, as has been contended by the state, and as may be admitted for the purpose of this argument, then there was an existing recognizance for his appearance at the next term of the [525]*525court, and the bail could be put in default, the recognizance declared forfeited, and even a judgment nisi entered, only on the second day of that term. According to the argument, therefore, of the district attorney himself, it, was only on the second day of that term that he could call the sureties and put them in default. Nothing, in my opinion, authorized the district attorney to enter a judgment nisi on any other day of the term, and the notice of .such judgment cannot be dispensed with, according to the law existing at that time. But it is said the statute was entirely nugatory and ineffectual. That is no consideration for this court, which has no powrer to patch up defective legislation.
It IS llOt SO clear that when the body of the accused is produced by the bail, and notice given to the district attornej7, the bail is not exonerated without any formal exoneratur being entered. According to the English authorities, such would be the effect of a surrender by the bail.
But is it so clear that by producing the body of the traverser, and giving notice of the fact to the district attorney, the bail was not, in fact, exonerated, without any formal exoneratur being entered 1 According to the English authorities, although the exoneratur. be, by neglect of the officer, not actually entered, yet, if thé plaintiff be apprized of the surrender, scire facias against the bail shall be set aside, though the plaintiff’s attorney knew not of the surrender. Comyn’s Digest, verbo Bail, Q. 2. In this case, the district attorney was apprised of the fact that the defendant had been produced in court, in compliance with the recognizance, and he proceeded to conviction without ordering the defendant into custody, even after verdict against him. I have no doubt the bail thought himself discharged, but even if he was not, he could not, in my opinion, be put in default until the second day of the next term, for it is clear the court could not pronounce the judgment nisi on any other day of the term. In my opinion, therefore, the state is not entitled to judgment, because the bond was not forfeited according to the' law existing at that time, and forms were not pursued, which were required by law to entitle the state even to a conditional judgment against the bail. I have not the least doubt but that the Court of Exchequer in England, under the strong equitable circumstances of this case would relieve the bail. Without assuming any such .equitable powers, I think that at least we ought to hold the [526]*526state to a strict compliance with its own laws, 'more especially in cases where the primary object of bail is to secure the personal appearance of persons accused of criminal offences,
But it is contended that the attorney general is empowered to prosecute in all cases in which the state is a party; and, consequently, has a right to pursue any form which the law authorizes in ordinary cases. I deny that a general authority to sue authorizes him to pursue any other remedy than that which the law makes it his duty to pursue in particular cases. This general power is conferred by the act of 1817, section 3, which declares merely that the attorney general, and the several prosecuting attorneys, shall be bound to prosecute or sue in all cases, either civil or criminal, where the state shall be a party. 1 Moreau’s Digest, 27.
The act of 1818, permitted judgment to be given, on motion, against bail, after ten days notice of such intended motion.
The act of 1827, has also been relied on as confirming this power. That statute makes it the duty of the attorney general, and district attorneys, within their respective districts, to pursue, on behalf of the state, such legal measures as they may deem expedient for the recovery of all claims of the state, the recovery of which is not otherwise provided for; and they are allowed a commission of five per cent, upon the amount recovered. 2 Moreau, 416.
This act gives a discretionary power except in cases in which the recovery is otherwise provided for. The recovery on bail bonds in criminal cases, is expressly provided for by other laws. It is made the duty of those officers to prosecute upon them as incidental to their duties in criminal prosecutions, for which they have a fixed salary, and thej'’ are not entitled to a commission on the amounts of penal bonds taken in such cases. But this last statute has been expressly repealed by the act of 1835. See Jlcts of 1835, 220, section 8. The discretion, therefore, vested in the attorney general, by the act of 1827, has been expressly revoked, and whence does he derive his power to pursue a remedy not only novel and unprecedented, so far as I am acquainted with the [527]*527practice, but variant from- that which it is made his duty to pursue under the statute in question.
My opinion is, therefore, that the judgment should be reversed, and ours be for the defendants.
Martin, J.
The defendants, who are the sureties.on bail of one Jackson, charged with criminal offences, are sued in an ordinary action, in the name of the governor, in behalf of the state, on their bail bonds.
The defendants pleaded, that the act of the 2d April, 18S5, page 219, prescribed the only mode in which the bail, in criminal prosecutions, can be sued ;'-and, this mode not having been pursued, they ought to be discharged. Secondly, that on the second day of the term at which their principal was bound to appear, he and they were called, and they immediately produced him in open court, and that they were thereby discharged. Thirdly, that afterwards, and during the same term, the principal was tried and found guilty, and remained in court for more than twelve hours thereafter.
. Judgment was given against the sureties on the bail bonds, and they appealed.
It appears, that afterwards, and during the same term, the principal failing to appear and abide the judgment of the court, he and the defendants were solemnly called, and without avail. A rule was taken to show cause why the recognizances should not be forfeited. .
The counsel of the appellants have contended, that they were improperly sued in an ordinary action ; the law authorizing no proceedings against them, except the summary one prescribed in the act of the 2d April, 1835.
2. That they were discharged by the appearance of their principal, on his being called for the first time, at the term to-which he was bound to appear.
3. That the act of 1817, having authorized the attorney general, and district attorneys, to carry on suits in which the state is concerned, without directing any mode of doing so, these officers are bound to carry on those suits in a manner which was afterwards prescribed.
When the forfeiture of a bail bond, has become matter of record, it may be put in suit in the ordinary •way, and. perhaps, in no other.
4. That the act of 1835, having been repealed before the judgment appealed from was pronounced, it was improperly rendered.
The state, in my opinion, is in our court entitled to select any legal means of instituting suits which individuals may resort to. The general remedy in every case is by petition. Summary proceedings are authorized, both in favor of the state and individuals. Either of them may be resorted to at pleasure. If, however, the legislature has seen fit to confine' the officers of the state to the summary remedy, they cannot resort to the ordinary mode of proceeding, by petition. This leads to the inquiry whether it has been done. The counsel for the appellants contends that it has; and endeavors- to prove it by the first section of the act of 1835, which requires the officers of the state, on the second day of each term, to call all persons who may have entered into a bond, or recognizances, to appear, or produce their principals, and on failure, to have a judgment nisi entered, etc. The call on such persons, only, is necessarily confined to the second day of the term. Persons who are bound not to depart from the court, without leave, may be called on any other day of the term, as, for example, when a prisoner is to be arraigned, tried, or sentence is to be passed on him, it would be absurd to say that the call, in such a case, is lobe delayed until the second day of the following term. They are not embraced in the section referred to, and it is not clear that the proceedings on failure to appear, or produce the principal, in such cases is to be regulated in the manner prescribed in that section. When the forfeiture of the bond has become a matter of record, it may be put in suit, in the ordinary way, and perhaps in no other. It is unnecessary to inquire whether a forfeiture recorded on the second day of the term cannot be prosecuted also in the same manner. The object of the legislature was, to make it the duty of the officers of the state to call all persons bound to appear, in court, on the second day of the term ; and it does not necessarily follow, that because they provided a summary remedy, more onerous to the parties than an ordinary suit, inasmuch as it deprives them of a trial by jury, and, by being extremely expeditious, [529]*529shortens the period during which the bail may relieve themselves by a surrender, the state meant to abrogate the remedy by ordinary suit. The defendants in this case were bound not only for the appearance of their principal, on the second day of the term, but for his forthcoming in court. On this part of the case, I think the District Court did not err in sustaining the suit.
2. The second ground taken by the counsel for the appellant is untenable.
3. I have already said that the provision for summary proceedings, does not abolish that by petition, in the ordinary manner.
4. The act of 1835 provided only for proceedings in a summary way. It said nothing of proceedings by petition. The repeal of it could not prevent a judgment on such a proceeding.
I feel no hesitation in saying that the defendants appear to be the victims of their misconception of the act of 1835, and to have thought themselves discharged by the appearance of their principal at the second day of the term. The words of the act appear to me calculated to induce such an error. But this circumstance cannot influence the judgment of the court.
I conclude that the judgment of the District Court is correct. The junior judge is also of that opinion, and we constitute a majority of the court.
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.