| Ill. | Apr 15, 1864
delivered the opinion of the Court:
Under the peculiar circumstances of this case and the condition of the country, the cause should have been continued on the affidavits on behalf of the defendants. It seems from them, they did all that could be expected of them, to take and surrender the principal to answer the indictment. He had enlisted in the army without the. knowledge or consent of his sureties, and they had used reasonable diligence to arrest and surrender him. They seem to have acted in good faith in their efforts to take him.
We are inclined to think the fifth and sixth pleas presented no good defense, but show ground for a continuance merely. Under such facts it would be unjust to condemn the defendants, without giving them the fullest time to produce their principal.
The scire facias is wholly unobjectionable, and might be well referred to as a model in like cases.
The judgment is reversed, and the cause remanded.
Judgment reversed.